



COURT OF APPEAL FOR ONTARIO

CITATION: Daniel v. Miller, Canfield, Paddock and Stone, LLP,
    2017 ONCA 697

DATE: 20170908

DOCKET: C62760

Strathy C.J.O., van Rensburg and Trotter JJ.A.

BETWEEN

Julie R. Daniel

Plaintiff
(Appellant)

and

Miller, Canfield, Paddock and Stone, LLP

Defendant
(Respondent)

Robert G. Matlack, for the appellant

Myron W. Shulgan and Nicole Marcus, for the respondent

Heard: September 5, 2017

On appeal from the judgment of Justice Peter B. Hockin of
    the Superior Court of Justice, dated September 16, 2016, with reasons reported
    at 2016 ONSC 5712.

REASONS FOR DECISION

[1]

T
he

appella
nt
s
c
o
r
e
su
b
m
i
ss
ion

is
t
h
a
t

in
f
inding
th
at
sh
e
w
as

a par
t
ner

in
t
he

r
es
p
o
ndent l
a
w
f
ir
m
, r
ath
er
t
han
a
n

e
m
plo
y
ee,
t
he
t
r
i
al judge ga
v
e

i
ns
u
ffici
ent
c
o
ns
ider
at
ion
t
o
t
he
f
a
c
t
t
h
a
t

her
w
ork
w
as
c
on
t
rolled

by

the

pa
rt
ner
w
ho
s
e
c
lie
nt
s
s
he
s
er
v
ed

and
that
    s
he
w
as
    dependent on
t
he
fi
rm
f
or

her
w
or
k
.
I
n
s
o
d
oing,
s
he
s
a
ys
,
t
he
t
rial judge
f
ailed
t
o

app
l
y
t
he
tes
t
se
t

o
u
t by
t
he

Su
p
re
m
e
C
ou
r
t of
C
anada in

McCormick v. Fasken Martineau
    DuMoulin LLP
, 2
0
14

S
C
C 3
9, [2014] 2 S.C.R. 108
.

[2]

W
e do

not a
cc
ept this
s
ubmis
s
ion.

McCormick
,
t
o
w
hi
c
h the

trial
    judge adver
t
ed,

dealt
w
i
t
h
t
he i
ss
ue of
w
he
t
her

a mandatory
    re
t
irement

pro
v
i
s
ion

in a

law
f
irms par
t
ner
s
hip
    agreement of
f
ended
t
he

Human Rights Code
,

R.S.B.C. 1996,
    c. 210. The
c
on
t
rol and dependen
c
y
t
est
w
as

applied
t
o determine
w
he
t
her a particular workplace relationship placed

a

per
s
on in

a po
s
i
t
ion of
v
ulnerabili
t
y
f
or
t
he

purpo
s
e of the

Code
.

[3]

McCormick

does not

es
t
abli
s
h

control and
    dependency as an all-purpose test to determine
w
he
t
her

a per
s
on

is a par
t
ner or

an emplo
y
ee.
    Here,
t
he
t
rial judge
c
orre
ct
ly
c
on
c
luded
t
hat one

mu
s
t e
x
amine

all
t
he
s
urrounding
c
ir
c
um
st
an
c
e
s
,
t
he
s
ubs
t
ance

of
t
he

rela
t
ion
s
hip, the behaviour of the parties and the in
t
ention

of
t
he par
t
ie
s
,
t
o de
t
ermine
w
he
t
her a

par
t
ner
s
hip e
x
i
st
s: see
Backman
    v. Canada
, 2001 SCC 10,
[2001] 1
    S.C.R. 367. In
Backman
, Iacobucci and Bastarache JJ., writing for the
    court, stated
at para. 26:

Whether a partnership has been established in a particular case
    will depend on an analysis and weighing of the relevant factors in the context
    of all the surrounding circumstances. That the alleged partnership must be
    considered in the totality of the circumstances prevents the mechanical
    application of a checklist or a test with more precisely defined parameters.

[4]

I
n
f
inding
t
hat
t
he appellant
w
as

a partner

in
t
he
f
ir
m
, the trial

judge made
f
indings

of
f
a
c
t
w
h
ic
h
w
ere

a
v
ailable
t
o

him on
t
he e
v
iden
c
e. He
f
ound
t
hat
t
he
    appellant:

·

c
ond
ucte
d

h
e
r
s
e
l
f
a
s

a

pa
rt
ne
r
,
w
as
t
r
e
a
t
ed

as a

pa
rt
ner
a
nd
w
as

held o
u
t
t
o
cl
i
e
n
ts
,
t
he

Law

So
ci
e
t
y

and Cana
d
a
R
e
v
enue
    Agency

as a

par
t
n
e
r;

·

re
c
ei
v
ed

a
d
ra
w
,
wit
ho
u
t
s
ou
rc
e

ded
uct
io
n
s
o
f
i
n
c
o
m
e
t
ax

or employment
    insurance,

a
n
d
f
iled

her
t
ax

re
t
ur
n
s
a
s

a

pa
rt
ne
r
;

·

made contributions to a capital account, which were recorded in the
    financial statements, and was at risk that her capital contributions could be lost;

·

re
c
ei
v
ed

enha
nc
ed

benef
it
s and

i
ns
ur
a
n
c
e,
w
hi
c
h
w
ere a
v
ailable
o
nly
t
o par
t
ne
r
s in
t
he
fi
rm;

·

a
tt
e
n
ded

par
tn
er
s

m
ee
t
in
g
s
a
t
w
hi
c
h

de
cis
io
n
s
w
ere
ma
d
e
, par
tic
ip
at
ed
i
n
t
he
m
anage
m
ent of
t
he
f
irm

an
d
,
c
o
nt
rary
t
o

her e
v
iden
c
e,
w
as

e
ntitl
ed
t
o
v
o
t
e

on

d
ecisi
ons
m
a
d
e
a
t par
t
n
e
r
s

m
ee
t
ings;

·

had

a
cces
s
t
o
c
o
nf
ide
nt
ial in
f
or
mat
ion, which
    was only available to partners,

about
t
he

b
us
in
es
s

and
fin
an
c
ial

a
ff
ai
r
s

of
t
he
f
ir
m;

·

s
igned
fi
rm
c
hequ
e
s

a
n
d

op
i
nio
n
s

on
b
ehalf of
t
he
f
ir
m
;

·

s
hared

in
t
he

pr
ofit
s
o
f
t
he
f
irm
t
hrou
g
h

a
b
onus de
p
end
e
nt

on
t
he
p
ro
fi
t

of
t
he
f
ir
m
;

and

·

had

bui
l
t up

a

n
o
t
i
n
s
ign
if
i
c
ant pr
act
i
c
e

of her

o
w
n
.


[5]

In coming to these conclusions, the trial judge accepted the evidence of
    two other members of the firm, whose circumstances were similar to the appellants,
    who testified that they conducted themselves as partners in the firm and were
    treated as such.

[6]

The trial judge applied the relevant legal principles to his findings of
    fact and concluded that a partnership relationship existed in the context of
    the factual matrix in the case. This was a conclusion of mixed fact and law and
    the appellant has demonstrated no palpable and overriding error.

[7]

We therefore dismiss the appeal, with costs to the respondent in the
    amount of $25,000, inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

K. van Rensburg J.A.

G.T. Trotter J.A.


