August 21, 2019 (Justice Centre for Constitutional Freedoms) — The Justice Centre for Constitutional Freedoms (JCCF.ca) has written to the Alberta Human Rights Commission on behalf of Alberta resident, Todd P., who is facing a formal Complaint under the Alberta Human Rights Act, for having asked about the age and gender of a potential babysitter for his young children.
Todd is a single father with two sons, who were ages 5 and 8 at the time. On August 31, 2017, Todd posted an ad on Kijiji looking for a babysitter for an evening. One of those who responded to the ad was the Complainant, James Cyrynowski. Todd replied to Mr. Cyrynowski asking some basic questions about Mr. Cyrynowski, including what town he lived in, what his age was and whether he was male or female. Mr. Cyrynowski answered these questions.
However, Todd's evening plans fell through, and so he cancelled his plans to hire a sitter. Todd didn't contact Cyrynowski further. Mr. Cyrynowski did not follow up with Todd either.
Rather than follow up with Todd, Mr. Cyrynowski filed a Human Rights Complaint against Todd the very next day, alleging discrimination on the basis of age and gender, in violation of section 8 of the Alberta Human Rights Act.
The Justice Centre is representing Todd pro bono in this case, and has learned that Todd is one of many parents who, after they did not hire Mr. Cyrynowski as a babysitter, were subsequently subject to Human Rights Complaints.
One such Complaint has already been completely adjudicated all the way to the Supreme Court of Canada as a test case. In that case, Mr. Cyrynowski filed a complaint against the mother of a five-year-old boy, who placed a Kijiji ad stating her preference for “an older lady with experience :).” A human rights investigator recommended that the mother be required to pay Mr. Cyrynowski $1000-$1500 for “damages to dignity.”
The Director and Chief Commissioner of the Alberta Human Right Commission dismissed Mr. Cyrynowski's complaint against this mother. The Chief Commissioner stated that the parent's “preference for who looks after her child in her own home” is a bona fide occupational requirement; the mother is entitled to insist on a babysitter who is older and female.
That holding was affirmed as reasonable by the Alberta Court of Queen's Bench, in its 2017 decision in Cyrynowski v Alberta (Human Rights Commission), 2017 ABQB 745. Writing in that case, Justice Pentelechuck urged that the Alberta Human Rights Act be reformed, stating specifically that “it may be inappropriate to subject employers — in situations where the provision of personal services in a private home setting is engaged — to strict advertising and hiring requirements.” Mr. Cyrynowski's further appeals of this test case to the Alberta Court of Appeal and the Supreme Court of Canada were denied.
Since 2017, the Alberta Government has not taken further action to review the Alberta Human Rights Act.
“It is unclear why the Human Rights Commission has now accepted Mr. Cyrynowski's complaint against Todd, giving the precedent set by the test case,” stated lawyer and Justice Centre president John Carpay.
The Justice Centre has written a letter to the Alberta Human Rights Commission, calling on the Commission to dismiss the Complaint against Todd and respect the rights of children and parents protected under the Canadian Charter of Rights and Freedoms:
Thwarting parents from even inquiring about a babysitter's gender or age is inconsistent with giving “utmost deference” to parents' preferences concerning a babysitter for their children. It is also inconsistent with the fact that both gender and age may each be bona fide occupational requirements in this context. …
The Commission should utilize the Charter as an interpretative guide and find parents' decisions concerning who will babysit their own children are not “employment” decisions subject to the AHRA. Such an interpretation is necessary to respect the constitutional rights of parents and children, who are protected by allowing their parents' to make informed decisions for their care. Applying section 8 of the AHRA to requests for personal services in a private home, such as babysitting, violates the Charter rights or parents and children.
“Parents' personal decisions about who should babysit their children should not be subject to the dictates of the Alberta Human Rights Commission,” explained Carpay.
“The Justice Centre will continue to represent Todd — pro bono — until this Complaint is dismissed,” continued Carpay.
Published with permission from the Justice Centre for Constitutional Freedoms.