The Justice Centre represented an Alberta mother who was facing a complaint before the Alberta Human Rights Commission for simply asking a potential babysitter whether he had kids.
Danielle, whose surname is redacted to protect her family’s privacy, is an Edmonton mother of three young children. In February of this year, 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 detailing his credentials and experience. Danielle responded by asking James whether he had any children of his own and about his employment status, and by requesting references.
Numerous people contacted Danielle in response to the ad. Danielle ultimately retained 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. Rather, 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. In his Complaint, he stated:
I applied for a caregiver job on Kijiji. I was asked if I have children. I do not. I did not get the job.
On June 6, 2019, the Alberta Human Rights Commission accepted Cyrynowski’s complaint against Danielle, and sent her a letter requiring that she provide a detailed response to the Complaint. This has caused Danielle significant stress and anxiety as she has been forced to attempt to respond to these legal proceedings filed against her.
Cyrynowski is the same Complainant who filed a Human Rights Complaint against Todd, a single father of two who asked Cyrynowski to provide his age and gender when he applied to babysit Todd’s children. After announcing that it would represent Todd pro bono, the Justice Centre learned of Danielle’s case and agreed to represent her on a pro bono basis until the Complaint is dismissed.
The Commission’s decision to accept and investigate Cyrynowski’s complaints has come under scrutiny in light of the Commission’s own precedent in a similar case, in which the Commission ruled that parents have the right to hire babysitters based on the parents’ own preferences. In this previous 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 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 Alberta Human Rights Commission, who 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 her 2017 decision on the Cyrynowski test case, Justice Pentelechuk specifically found that legislative review and reform was needed to clarify the Alberta Human Rights Act. However, to date, the Alberta Government has not taken further action to review the Alberta Human Rights Act.
The Justice Centre wrote a letter to the Alberta Human Rights Commission, 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.
A month after the Justice Centre sent its letter, both the investigating Human Rights Officer and the Northern Director for the Alberta Human Rights Commission recommended that the Cyrynowski complaint be dismissed. The decision whether to grant the Justice Centre’s request and follow the recommendations to dismiss Cyrynowski’s complaint against Danielle is now before the Director of the Alberta Human Rights Commission.
On November 27, 2020 the Commission announced it had dismissed the complaint.
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.
On March 17, 2021, the Alberta Human Rights Commission (AHRC) issued a further decision denying James Cyrynowski’s request for review of the dismissal of his complaint against Danielle.
The decision, written by AHRC Member Kathryn Oviatt, found no reasonable basis for the claim of discrimination against the Alberta Mother, 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.”
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.”
“Parents’ personal decisions about who should babysit their children should not be subject to the dictates of the Alberta Human Rights Commission,” explains Justice Centre staff lawyer Marty Moore, who represents both Danielle and the single father previously investigated.
“It is a sad state of affairs when numerous Alberta parents are subjected to the stress of the Alberta Human Rights Commission process simply for seeking to make informed decisions for the care of their own children,” continues Moore. “Parents have the right to decide on the best caregiver to entrust with their children.”
“Our client is very happy to hear that the complaint against her has been dismissed,” states Moore. “We urge the Alberta Government and Human Rights Commission to prevent other careful parents from being subjected to this long, stressful, and unnecessary process.”
