Oct 4th, 2019
The Justice Centre announced today that the Northern Director for the Alberta Human Rights Commission has issued letters (1, 2) recommending that 30-year-old babysitter James Cyrynowski’s complaints against two Edmonton area parents be dismissed as “there is no reasonable basis to proceed”.
The position in question requires caring for a young and vulnerable child within a private home. In this circumstance, a parent’s personal preference, including questions relating to that preference, for a caregiver can be justified as a Bona Fide Occupational Requirement (“BFOR”) under the Act.
This recommendation to dismiss Cyrynowski’s complaints now proceeds to the Director of the Alberta Human Rights Commission.
Cyrynowski made national headlines after filing complaints against at least two different Edmonton area parents for allegedly violating the Alberta Human Rights Act, based on the parents’ requests for information about Cyrynowski’s age and gender, and whether he had children. Both parents had posted ads on Kijiji looking for a babysitter, and Cyrynowski had responded to the ads.
The first parent, Todd, a single father of two boys aged 5 and 8 at the time, replied to Cyrynowski asking what town he lived in, what his age was and whether he was male or female. Cyrynowski answered these questions.
Todd ended up not needing a babysitter and didn’t contact Cyrynowski further. Cyrynowski likewise, did not follow up with Todd. Instead he 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.
Meanwhile the second parent, Danielle, an Edmonton mother of three young children, replied to Cyrynowski’s response to her ad by asking him whether he had any children of his own and about his employment status, and by requesting references.
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 further attempt to follow up with Danielle.
Rather, on April 30, 2019, he filed a complaintagainst 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.”
The Alberta Human Rights Commission initially accepted Cyrynowski’s complaints against both parents, which caused them significant stress and anxiety as they were required to respond to the legal proceedings against them.
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 test case, in which the Commission ruled that parents have the right to hire babysitters based on the parents’ own preferences.
The previous case also involved Cyrynowski, who in 2014, filed a complaint against a mother of a five-year-old boy, based on her Kijiji ad seeking a babysitter, which stated her preference for “an older lady with experience.” A human rights investigator recommended that the mother be required to pay Cyrynowski $1,000 to $1,5000 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 dismissal of his complaint 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 Dawn 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 acted on this recommendation.
“The Justice Centre is pleased with the recommendation of the Northern Director for the Alberta Human Rights Commission that these complaints be dismissed,” stated staff lawyer Marty Moore. Acting pro bono on behalf of parents Todd and Danielle, the Justice Centre is now calling for the Commission Director to dismiss the complaints and respect the rights of children and parents protected under the Canadian Charter of Rights and Freedoms.
“Parents have the responsibility, and constitutional right, to make informed decisions about the care of their children,” says Moore, who is representing both Danielle and Todd. “Changes need to be made at the Commission, at the Legislature, or both, to ensure that other parents don’t have to go through this stressful process for simply trying to make an informed decision in choosing a babysitter for their kids,” continued Moore.