Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: Discriminate against babysitters

The Supreme Court of Canada recently declined to hear an interesting case that considered whether a parent had discriminated in a babysitting ad.

The case arose from an ad posted on Kijiji by a mother looking for a babysitter to take care of her son every second Saturday. She stated that she was looking for “an older lady with experience.”

Mr. C applied for the position and provided some of his credentials. Upon learning he was male, the mother replied: “Oh sorry I’m looking for female.”

He filed a complaint with the Alberta human Rights Commission, alleging that he had been discriminated against on the basis of gender in an employment application and advertisement, contrary to section 8 of the Alberta Human Rights Act (HRA).

That provision prohibits employment application forms and employment advertisements “that expresses either directly or indirectly any limitation, specification or preference indicating discrimination on the basis of” a ground which is protected from discrimination. Gender is a protected ground. The prohibition does not apply to a preference based on a bona fide occupational requirement (BFOR).

While there is more to it, a BFOR is essentially a necessary job requirement. For example, a church’s requirement that its leaders ascribe to the faith would likely be acceptable as a BFOR, as would a women’s shelter’s requirement for female staff.

The Human Rights Code (British Columbia) contains similar provisions.

The Human Rights Commission director dismissed Mr. C’s complaint, on the basis that the relationship between the mother and Mr. C was a private one, to which section 8 did not apply. A second reason was given, that the mother’s refusal to consider Mr. C a babysitter was based on a BFOR.

The mother did not participate in any stage of the proceedings.

Mr. C. then requested a review of the director’s decision by the Chief of the Commission and Tribunals. The chief stated that section 8 applied to advertising for a babysitter in a private home. However, the director’s dismissal of the complaint was upheld on the basis that the mother’s preference for who looks after her child in her home was a BFOR, and that parents must have final say in who babysits their children.

Mr. C. then sought judicial review.

At the judicial review hearing, the court found that it was reasonable to conclude that babysitting in a private home fell within the Human Rights Act. Although the court had a number of comments about the BFOR explanation, ultimately it held that the commissioner drew a reasonable inference that the mother’s preference for a female babysitter could be easily explained. The application for judicial review was dismissed. Mr. C. fared no better at the Court of Appeal.

The Supreme Court of Canada refused to hear the case.

While the selection of a female babysitter was upheld – and made sense – in this case, it is interesting that hiring a babysitter falls within human rights legislation. One can imagine other scenarios that may be less clearly upheld: a preference for Caucasian babysitters only, or a preference against indigenous Canadians, for example.

Although in this particular case, the court ruled that the requirement for a female employee was a BFOR, this will not necessarily be the result in all cases.

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