John Carpay is a lawyer and the president of the Justice Centre for Constitutional Freedoms, which represents Todd and Danielle in relation to Human Rights Commission investigations.
Human rights are fundamental and vital for our society, and organizations are needed to safeguard these easily diminished rights. But an investigation in Alberta, months after the media hubbub over a case at the BC Human Rights Tribunal in which Jessica Yaniv – a transgender woman who brought forward complaints against more than a dozen businesses which declined to Brazilian-wax her genitals because she hadn’t had gender-reassignment surgery – shows that these institutions can miss who the real victims are.
Since at least 2014, James Cyrynowski says he’s been asked about his age, gender and lifestyle by parents seeking babysitting services in Alberta, or simply had his services declined. And now, Alberta’s Human Rights Commission is investigating at least two Edmonton-area parents for allegations of discrimination and violating the Alberta Human Rights Act.
Todd is a single father with two sons (he and the other parent have sought to protect family privacy by not revealing their last names). In August, 2017, Todd posted an ad on Kijiji stating: “Babysitter wanted for evening Friday Sept 1 and other evenings.” Mr. Cyrynowski expressed his interest in the position. When asked about age, gender and city of residence, Mr. Cyrynowski replied: “Hi, I live in Edmonton. I’m male and 28 years old.” This was the last communication between them; Todd’s dinner plans with his friend fell through, so he no longer needed a babysitter, and did not respond further to Mr. Cyrynowski or to any of the other people who had replied to the Kijiji ad. Mr. Cyrynowski’s next move was not to follow up but to file a human- rights complaint the next day, alleging discrimination based on age and gender.
Then, in February, 2019, Danielle – a mother of three – corresponded with Mr. Cyrynowski about babysitting services and asked him whether he had children of his own. Mr. Cyrynowski said “no.” Danielle did not respond further to him, in addition to other applicants.
The Commission’s investigations are inflicting massive anxiety on these parents. “This situation is causing a lot of stress and all I was doing was just trying to find the best match for my children," Danielle said in an e-mail to us at the Justice Centre, echoing her response to the Commission. "When I asked if he had children, it wasn’t to discriminate, it was because I felt I would relate with someone who had children. … I’ve been biting my nails for the last two months not knowing what to do about this.”
The Commission’s decision to process the complaints against Todd and Danielle is bizarre, in light of its own prior rejection of Mr. Cyrynowski’s 2014 complaint against Christina Stadler, who wanted an “older lady with experience” to watch her then five-year-old son. The investigator recommended “damages to dignity” in the range of $1,000 to $1,500. However, the Chief Commissioner ultimately dismissed the complaint, ruling that parents can insist on a female babysitter: Gender in this context is a bona fide occupational requirement.
The Commission’s own ruling was challenged unsuccessfully by Mr. Cyrynowski through to the Alberta Court of Appeal, after which the Supreme Court of Canada refused to hear a further appeal. In December, 2017, the Court of Queen’s Bench noted that human-rights laws in many Canadian jurisdictions do not apply to services provided in a private home. The Court noted “the tension between human-rights legislation and the autonomy to make decisions about personal care provided in one’s own home,” and urged the legislature to change Alberta’s vague law.
The Canadian Charter of Rights and Freedoms constitutionalizes the inviolability of the parent-child relationship from state interference, absent extraordinary demonstrable necessity. As the Supreme Court of Canada explained in B. (R.) v. Children’s Aid Society of Metropolitan Toronto: “the common law has always … presumed that parents should make all significant choices affecting their children, and has afforded them a general liberty to do as they choose. … parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself.”
To prohibit parents from asking probing questions of potential babysitters is to prohibit parents from making the best decisions about the care and protection of their own vulnerable children.
Nobody inherently has a legal right to babysit another’s child. Alberta’s Human Rights Commission should discontinue its investigations of Todd, Danielle and other parents, and instead adhere to its own past precedent – not to mention common sense.
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