Human Rights Commission denies babysitter’s appeal of discrimination complaint
EDMONTON: The Justice Centre for Constitutional Freedoms is pleased to announce that the Alberta Human Rights Commission (AHRC) has issued a decision denying James Cyrynowski’s request for review of the dismissal of his complaint against an Alberta Mother who had simply asked him whether he had children of his own when he applied to be a babysitter in a private home.
The March 16, 2021 decision, written by AHRC Member Kathryn Oviatt, found no reasonable basis for the claim of discrimination against the Alberta Mother who is represented by the Justice Centre, and affirmed that the Alberta Human Rights Act “should be interpreted with respect for Charter values”. She quoted the Supreme Court of Canada’s recognition that “the parental interest in bringing up, nurturing and caring for a child, including medical care and moral upbringing, is an individual interest of fundamental importance to our society."
The complaint was originally filed in spring 2019 by serial complainant, James Cyrynowski. Cyrynowski made national headlines after filing discrimination complaints against at least two different Edmonton-area parents, both represented by the Justice Centre, based on the parents’ asking about Cyrynowski’s age and gender, and whether he had children of his own. Both parents had posted ads on Kijiji looking for a babysitter, and Cyrynowski had responded to these ads.
Danielle, whose surname is redacted to protect her family’s privacy, is an Edmonton mother of three young children. In February 2019, Danielle posted an ad on Kijiji looking for a babysitter for her children.
On February 6, 2019, the Complainant, James Cyrynowski, responded to the ad. Danielle replied by asking James about his employment status, whether he had any children of his own and requesting references.
Numerous people contacted Danielle in response to the ad. Danielle ultimately selected a babysitter who lived in her neighbourhood and worked close to her children’s daycare. Danielle did not follow up further with Cyrynowski or with other individuals who had contacted her online.
Likewise, Cyrynowski did not make any attempt to follow up with Danielle. Instead, on April 30, 2019, he filed a Complaint against Danielle, alleging discrimination on the basis of family status in violation of section 8 of the Alberta Human Rights Act.
Cyrynowski is the same Complainant who filed a Human Rights Complaint against Todd, a single father of two who was also subject to a Human Rights Complaint for asking Cyrynowski to provide his age and gender when he applied to babysit Todd’s children. In October 2019, two years after he filed a complaint against Todd, Cyrynowski dropped that complaint, after the Justice Centre represented Todd and demanded that the AHRC dismiss the Complaint.
The Commission's decision to accept and investigate Cyrynowski’s complaints in the first place came under scrutiny in light of the Commission’s own precedent in a similar test case, also instigated by Cyrynowski, in which the Commission ruled that parents have the right to hire babysitters based on the parents’ own preferences.
In this precedent-setting case, Cyrynowski filed a complaint against a 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 initially recommended that the mother be required to pay Cyrynowski $1,000 to $1,500 for “damages to dignity.” The investigator’s recommendation was rejected by the Director and Chief Commissioner of the AHRC, who instead dismissed Cyrynowski’s complaint and upheld the right of a parent to exercise her own preference in regard to who looks after her child in her own home. Cyrynowski appealed the Commission’s decision to the Alberta Court of Queen’s Bench, then to the Alberta Court of Appeal, and both courts upheld the Commission’s rejection of Cyrynowski’s complaint. The Supreme Court of Canada refused to hear a further appeal.
In a 2017 decision on the Cyrynowski test case, Justice Dawn Pentelechuk specifically found that legislative review and reform was needed to clarify the Alberta Human Rights Act, which fails to expressly exempt the provision of personal services in a private home from scrutiny under the Act. However, to date, the Alberta Government has not taken further action to review the Alberta Human Rights Act.
In October 2019, the Justice Centre wrote to the AHRC, calling on the Commission to dismiss the Complaint against Danielle and respect the rights of children and parents protected under the Canadian Charter of Rights and Freedoms:
There is no justification for government interference, via the Commission, in parents’ personal choices for babysitters for their children. We request that the Complaint be dismissed.
Both the investigating Human Rights Officer and the Commission’s Northern Director agreed and recommended that the Complaint be dismissed in 2019.
On November 20, 2020, the director of the Alberta Human Rights Commission dismissed Cyrynowski’s complaint against Danielle.
Cyrynowski immediately requested a review of the decision to dismiss his appeal. On December 28, 2020, the Justice Centre submitted a response on behalf of Danielle supporting the decision to dismiss Cyrynowski’s complaint.
In the recent denial of appeal, Ms. Oviatt noted:
“The Chief’s decision in Cyrynowski, reflected this Charter value towards parental rights when he recognized that the “utmost deference” should be awarded to parental choice of childcare within their homes. A Charter values approach to applying the Act to the facts of this Complaint does not support proceeding further. To proceed further would require the respondent to endure the stress, inconvenience, additional delay, and, potentially, financial impacts of defending herself at a fully contested hearing to justify her parenting decisions. This is not in the interests of justice, fairness, or the intentions of the Act.”
“We are happy to see the Commission express respect for the Charter rights of parents in making critical decisions concerning the care of their own children,” states Justice Centre staff lawyer Marty Moore, who represents both Danielle and Todd.
“Alberta legislators should amend the Human Rights Act with a clear provision that prevents Alberta parents from being subjected to the stress of the Alberta Human Rights process simply for seeking to make informed decisions for the care of their own children,” continues Moore.