Mandatory retirement clauses breach Quebec Charter, rules court

Professional services firms that have mandatory retirement policies and provisions that require partners to divest their ownership shares solely on the basis of age are discriminatory and in breach of the Quebec Charter of human rights and freedoms held Quebec Superior Court in a ruling that has the legal community buzzing over its implications.

In a case that pitted a Montreal municipal and labour and employment law firm against its founder, the decision by Quebec Superior Court Justice Stéphane Lacoste is expected to have wider repercussions than the thorny issue of mandatory retirement, according to legal observers. Following the decision in DHC Avocats inc. c. Dufresne, 2022 QCCS 58, typical arrangements made by professional services firms in succession planning such as “unpartnering” or changing the status of their senior partners while still allowing them to work in the firm may be called into question, added legal experts.

“Any clauses relating to compulsory retirement or departure will be deemed to be absolutely null and void,” said Vincent de l’Étoile, a Montreal litigator with Langlois Lawyers LLP, adding that his law firm does not have a mandatory retirement policy. “There is no ambiguity, no nuance whatsoever. The judge concluded that such clauses are discriminatory. But what’s also at stake from this decision is that other types of clauses such as the loss of partner status but that nevertheless allow the person to work within the firm may be by extension also be illegal.”

According to Louis Coallier, a Montreal litigator with DHC Avocats who unsuccessfully plead the case, the judge erred in law and “had a view of the facts” that can be construed as being afflicted by “tunnel vision” or “distorting lens.” As noted by the Supreme Court in Salomon v. Matte‑Thompson, 2019 SCC 14, the notion of distorted lens is a metaphor the Quebec Court of Appeal has used several times when overturning findings made by trial judges considered to be “tainted to some extent by a general misperception.”

“It is a terse judgment, without nuance,” said Coallier, who said that the law firm intends to file a leave to appeal before the Quebec Court of Appeal. “All partnership or shareholder agreements of large firms in Quebec that provide for the retirement or change of status of partners at a certain age have become illegal. Do we have to keep Claude Dufresne as a partner until 101 years old?”

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This story was originally published in The Lawyer’s Daily.

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