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Partnerships - Nature of a Partnership. McCormick v. Fasken Martineau DuMoulin LLP
In McCormick v. Fasken Martineau DuMoulin LLP (SCC, 2014) the Supreme Court of Canada makes some general comments on the nature of partnerships:[29] This brings us to partnerships generally. British Columbia’s Partnership Act is modeled on the U.K. Partnership Act 1890[14] (Alison R. Manzer, A Practical Guide to Canadian Partnership Law (loose-leaf), at p. 1-2). Section 1 states that “‘firm’ is the collective term for persons who have entered into partnership with one another”. Section 2 defines a partnership as “the relation which subsists between persons carrying on business in common with a view of profit”. Accordingly, a partnership is by its nature an entrepreneurial relationship among individuals agreeing to do business together.
[30] The conventional view of a partnership was famously described in Lindley & Banks on Partnership (19th ed., 2010) as a collection of partners, rather than a distinct legal entity separate from the parties who are its members:The law, ignoring the firm, looks to the partners composing it; any change amongst them destroys the identity of the firm; what is called the property of the firm is their property, and what are called the debts and liabilities of the firm are their debts and their liabilities. [para. 3-04]
.... [31] Among the distinctive features of a partnership is that partners generally have a right to participate meaningfully in the decision-making process that determines their workplace conditions and remuneration (J. Anthony VanDuzer, The Law of Partnerships and Corporations (3rd ed. 2009), at p. 75; Partnership Act, s. 27(e)). This is reflected in, for example, the duty to render accounts to other partners in order to permit them to have the information they need to participate in workplace decisions and ensure that their interests are adequately considered. This duty is set out in s. 31 of the Partnership Act:31 Partners are bound to render true accounts and full information of all things affecting the partnership to any partner or his or her legal representatives. . Turkiewicz v. Ontario Labour Relations Board
In Turkiewicz v. Ontario Labour Relations Board (Div Ct, 2021) the Divisional Court considered the status of a sole proprietor:[12] A sole proprietorship and its proprietor are the same legal person. This is trite law. By registering the name of a sole proprietorship, Turkiewicz did not create a business entity separate from himself. When he performed work under the name of his proprietorship, he was not “employed” by his proprietorship – Turkiewicz did not, and could not, employ himself.[16] Referring to the sole proprietorship as somehow distinct from Turkiewicz creates the illusion of an “enterprise” distinct from the man himself. Throughout this decision I refer to Turkiewicz and his registered sole proprietorship as “Turkiewicz”, without distinguishing between the two because, in law, they are indistinguishable.
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