McCormick v. Fasken Martineau – Supreme Court of Canada finds that an equity partner is not an employee for human rights purposes under the control and dependency test

The question of whether an equity partner at a large law firm could bring an age discrimination complaint respecting its mandatory retirement policy turned on whether he was an "employee" for Human Rights Code purposes, which under the jurisprudence turned on whether he was "subject and subordinate to [the firm’s] decision-making over working conditions and remuneration." As he instead was found to be "part of the group that controlled the partnership, not a person vulnerable to its control," he was not an employee.

As the the human rights control and dependency test is similar to the superintendance and control test which is an important element in determining whether an individual is a common law employee (see Sagaz), this case is supportive of partners, who have the normal rights of participation in partnership voting and information sharing, not being recharacterized as employees for income tax purposes. However, Abella J went on to find that someone styled as a partner could be found to be an employee under the control and dependency test "where the powers, rights and protections normally associated with a partnership were greatly diminished."

Neal Armstrong. Summary of McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39 under s. 5(1).