Cyrynowski v Alberta (Human Rights Commission), 2017 ABQB 745

Court of Queen’s Bench of Alberta Citation: Cyrynowski v Alberta (Human Rights Commission), 2017 ABQB 745 Date: 20171205 Docket: 1603 02134 Registry: Edmonton Between: James Cyrynowski Applicant - and - Alberta Human Rights Commission (Chief of the Commission and Tribunals) and Christina Stadler Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ Introduction [ 1 ] James Cyrynowski [Applicant] responded to an online babysitting advertisement but was denied the position because he is male.

The Applicant has had similar experiences in responding to other online advertisements and has filed multiple complaints with the Alberta Human Rights Commission [Commission], alleging discrimination based on gender. [ 2 ] The parties agree that this is a test case. [ 3 ] The Applicant seeks judicial review of the decision of the Chief of the Commission and Tribunals [Chief Commissioner], which upheld the dismissal of his complaint. [ 4 ] I have concluded that the application must be dismissed, although as outlined in these reasons, legislative review and clarification is urged.

Background [ 5 ] On May 23, 2014, Ms. Christina Stadler [Respondent], posted an internet employment advertisement through Kijiji, seeking a part-time babysitter for her 5 year old son. The advertisement, in part, read: I’m in need of a sitter for every 2 nd Saturday. I need someone reliable and someone I can count on. I’ve had a few not show up. I prefer an older lady with experience :) Need care -- in my home only -- My son is five years old very easy kid [ 6 ] The Applicant replied to the advertisement through text message, expressing his interest in the position and outlined some of his credentials.

Upon learning the Applicant was male, the Respondent replied: “Oh sorry I’m looking for female.” [ 7 ] On May 26, 2014, based on this interaction, the Applicant filed a complaint with the Alberta Human Rights Commission alleging discrimination based on gender in advertisement for employment under

section 8 of the Alberta Human Rights Act, RSA 2000, c A-25.5 [ AHRA ]. The complaint was investigated. The Respondent did not file a response or provide any further information despite numerous attempts by Commission staff to contact her. She did not participate in this judicial review. [ 8 ] On March 23, 2015, the investigator issued an Investigation Memo to the Director of the Commission.

The investigator concluded there was a reasonable basis to proceed with the complaint, given a prima facie finding of discrimination and the lack of explanation by the Respondent regarding her preference for a female babysitter. She recommended damages to dignity in the range of $1000 to $1500. [ 9 ] On April 29, 2015, the Director dismissed the complaint. He held that an employment advertisement for a babysitter is a private relationship between the parties and not an employment relationship falling within the scope of the AHRA .

In the alternative, the Director concluded that the Respondent’s refusal to hire (or interview) the Applicant was based on a bona fide occupational requirement (BFOR), and that parents must have final say in who babysits their children. [ 10 ] On May 1, 2015, the Applicant requested a review of the Director’s decision by the Chief Commissioner. [ 11 ] The Chief Commissioner conducted a documentary review, and in written reasons dated January 11, 2016, upheld the Director’s decision to dismiss the complaint.

Unlike the Director, the Chief Commissioner concluded that advertising for childcare in a private home did indeed fall within the scope of the AHRA . However, despite the lack of response from the Respondent, he agreed that in this situation, the Respondent’s preference for who looks after her child in her own home is a BFOR. Overview of Legislative Authority and Procedure [ 12 ] The governing legislation for this judicial review includes the AHRA and the Alberta Human Rights Commission Bylaws (December 7, 2012) [ AHRA Bylaws ]. [ 13 ] The Applicant brought his complaint under

section 8 of the AHRA , which reads, in part: 8

(1) No person shall use or circulate any form of application for employment or publish any advertisement in connection with employment or prospective employment or make any written or oral inquiry of an applicant (

a) that expresses either directly or indirectly any limitation, specification or preference indicating discrimination on the basis of … gender, gender identity, gender expression, … , or (

b) that requires an applicant to furnish any information concerning … gender, gender identity, gender expression, … (2) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement. [ 14 ] Upon receiving a complaint, the Director will investigate the complaint.

The investigative process was outlined in Rein v Alberta (Human Rights Commission) , 2016 ABQB 386 at para 8 , 39 Alta LR (6th) 403: Once an individual makes a complaint to the AHRC alleging discrimination, the Director, through staff in various regional offices, will acknowledge the complaint, request a response, and will often collect additional information or respond to questions from counsel or parties regarding procedure and timelines. [ 15 ] To deal with the complaint, particularly in the absence of a settlement, the Director has several options under section 22(1) of the AHRA : 22(1) Notwithstanding

section 21, the director may at any time (

a) dismiss a complaint if the director considers that the complaint is without merit,

(

b) discontinue the proceedings if the director is of the opinion that the complainant has refused to accept a proposed settlement that isfair and reasonable, or (

c) report to the Chief of the Commission and Tribunals that the parties are unable to settle the complaint. [16] If a party to the complaint disagrees with the Director’s decision they may request a review of the decision by the ChiefCommissioner (AHRA s 26(1)). The Chief Commissioner’s gatekeeping role is outlined in section 26(3) of the AHRA:

(3) The Chief of the Commission and Tribunals shall (

a) review the record of the director’s decision and decide whether (

i) the complaint should have been dismissed, or (ii) the proposed settlement was fair and reasonable, as the case may be, and (

b) forthwith serve notice of the decision of the Chief of the Commission and Tribunals on the complainant and the person against whomthe complaint was made. [17] The decision of the Chief Commissioner is final with no right of appeal. An aggrieved party must proceed by way of judicialreview (AHRA s 35).

The Commission’s Role in the Judicial Review [18] Given the Respondent’s lack of participation, it is appropriate to comment on the proper role of the Commission in a judicialreview of its own decision. [19] Traditionally, the participation of a tribunal on appeal or review was limited to an explanatory role with reference to the recordbefore the tribunal and representations regarding jurisdiction: Northwestern Utilities Ltd v City of Edmonton, (SCC),[1979] 1 SCR 684 at 709, 12 AR 449 .

Later, in CAIMAW v Paccar of Canada Ltd, (SCC), [1989] 2 SCR 983,102 NR 1 , the Supreme Court appeared to endorse an expansion of a tribunal’s standing to explain the record, makesubmissions on the appropriate standard of review, and to argue the decision was reasonable. [20] Noting the difficulty appellate courts faced in reconciling the more restrictive approach endorsed in Northwestern, with themore relaxed approach suggested in Pacar, the majority of the Supreme Court of Canada in Ontario (Energy Board) v Ontario PowerGeneration Inc, 2015 SCC 44, [2015] 3 SCR 147, settled on a discretionary approach in determining a tribunal’s role on appeal orreview. [21] In Ontario (Energy Board), the Supreme Court considered whether the Ontario Energy Board acted improperly in pursuingan appeal and in arguing in favor of the reasonableness of its own decision.

The Court noted that the tribunal’s participation allows thereviewing court to hear useful information and analysis and benefit from hearing the best sides to a dispute, while still achieving theprincipals of finality and impartiality. In determining the appropriate level of participation, the Court identified the following factors tobe considered (at para 59):

(1) If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunalstanding.

(2) If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise tofully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes.

(3) Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making,regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised.Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of theappeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns. [22] Applying these factors in the context before me, there was no party to stand in opposition to the Applicant, a self-representedlitigant.

The Commission’s participation resulted in the necessary arguments being presented on the standard of review, jurisdiction andthe reasonableness of the Commission’s decision. I am mindful however, that this is a dispute between private parties and concerns ofimpartiality are heightened in this context. In balancing those considerations, I conclude it was appropriate to exercise my discretion toreceive the Commission’s submissions regarding the reasonableness of its own decision.

No concerns arose, that the Commission wasattempting to supplement its reasons for decision or provide fresh justifications for the Chief Commissioner’s decision to dismiss thecomplaint. Issues [23] The Applicant’s judicial review raises two questions. [24] The first pertains to the Chief Commissioner’s role and gatekeeping responsibilities under the AHRA and whether there was a

reasonable basis in the evidence to proceed to a hearing. [ 25 ] The second question involves the

interpretation and application of s 8 of the AHRA , which precludes, in part, applications or advertisements for employment that restrict applicants based on gender. Both the Director and later the Chief Commissioner determined that the Applicant’s complaint should be dismissed, but differed on whether this fact situation – an online advertisement for babysitting in a private home – fell within

section 8 of the AHRA and Alberta’s human rights legislation generally. Standard of Review The Chief Commissioner’s Gatekeeping Function [ 26 ] While the Applicant took no position on the standard of review at the hearing, his written submissions hinted that a correctness standard should be applied.

The Commission argued the standard of review for the Chief Commissioner’s decision, and all of its component parts, is reasonableness. [ 27 ] I agree with the Commission. [ 28 ] The leading case New Brunswick (Board of Management) v Dunsmuir , 2008 SCC 9 at para 62 , [2008] 1 SCR 190, provides the framework for determining the appropriate standard of review: First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.

Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [ 29 ] On the exercise of the Chief Commissioner’s gatekeeping function, the jurisprudence has established that the standard of review is reasonableness: Greater St Albert Roman Catholic Separate School District No 734 v Buterman, 2014 ABQB 14 at para 47 , 570 AR 39 [ Buterman ]; Rein at para 19 ; Brewer v Fraser Milner Casgrain LLP, 2008 ABCA 435 at paras 16-18 , 446 AR 47; Gramaglia v Alberta (Government Services Minster), 2007 ABCA 93 at para 30 , 404 AR 233; Callan v Suncor Inc, 2006 ABCA 15 at para 17 , 380 AR 247; St Albert and Area Student Health Initiative Partnership v Polczer, 2007 ABQB 692 at paras 48 , 50, 447 AR 27. [ 30 ] The “ decision of the Chief exercising his gatekeeper’s function to determine whether there is a reasonable basis on the evidence to proceed to hearing, attracts judicial review on the standard of reasonableness”: Buterman at para 47 .

The courts are cautioned to not lightly interfere with this gatekeeping function: Mis v Alberta Human Rights Commission , 2001 ABCA 212 at para 9 , 293 AR 391. Does the AHRA Cover Personal Services in Private Homes? [ 31 ] The second issue is whether the protection afforded in human rights legislation generally, and in

section 8 of the AHRA specifically, applies to childcare (and other personal care) provided in one’s own home.

Asked another way, should individual citizens have the unfettered discretion to decide who cares for their children or provides other personal care in the privacy of their own home? [ 32 ] In Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd , 2016 SCC 47 at para 24 , [2016] 2 SCR 293 [ Edmonton East ], the majority of the Supreme Court of Canada noted that while a presumption of reasonableness permeates judicial review, the presumption is rebutted when the issue under scrutiny falls within any of the four categories identified in Dunsmuir as attracting review on the correctness standard, namely: constitutional questions regarding the division of powers, issues “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise,” “true questions of jurisdiction or vires ,” and issues “regarding the jurisdictional lines between two or more competing specialized tribunals.” [ 33 ] For the purpose of this proceeding, only two of the exceptions are relevant: i.e. a “true question of jurisdiction,” and a question “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise.” [ 34 ] I find that neither of these two relevant exceptions applies in the present matter. [ 35 ] First, true questions of jurisdiction are exceedingly rare.

Recent commentaries from the Supreme Court suggest this exception may not even exist: Edmonton East at para 26 ; Atco Gas and Pipelines Ltd v Alberta (Utilities Commission ), 2015 SCC 45 at para 27 , [2015] 3 SCR 219 [ Atco Gas ]. [ 36 ] The Chief Commissioner’s determination of whether the issue of employment advertisements for babysitting in a private home falls under

section 8 of the AHRA is not a true jurisdictional question. Rather, it is more appropriately described as statutory

interpretation by the Chief Commissioner of the Commission’s home statute in a way that makes “practical and legal sense,” given the case before him and the jurisprudence: Stewart v Elk Valley Coal Corp , 2017 SCC 30 at para 20 , 411 DLR (4th) 1 [ Elk Valley ]. This conclusion aligns with the narrow

interpretation of the exception according to Edmonton East and Atco Gas . [ 37 ] Second, when the human rights commission deals with questions of law concerning the

interpretation of the AHRA , those decisions are reviewed for reasonableness, unless they are both of central importance to the legal system and fall outside the adjudicator’s specialized area of expertise: Assn of Professional Engineers and Geoscientists of Alberta v Mihaly, 2016 ABQB 61 at para 49 , 30 Alta LR (6th) 125, citing Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 at paras 46-48 , [2015] 2 SCR 3 . [ 38 ] Even if the

interpretation of

section 8 of the AHRA is a question of central importance to the legal system, it is clearly a

question that falls within the Chief Commissioner’s area of expertise. Complementary to the Commission’s institutional expertise, the Chief Commissioner must possess a law degree, and experience, knowledge or training in human rights or administrative law: AHRA Bylaws s 13(3). As stated in Buterman at para 58 : The expertise of the Chair of the Commission and Tribunals is beyond question. The resolution of unclear language in a home statute is best left to the administrative tribunal as it will be in the best position to weigh policy considerations involved in choosing between multiple reasonable

interpretations. In my view, this was the intention of the legislature when it granted to the Chief the power to review the Director’s decisions, thereby granting him the authority to oversee human rights complaints process, with the protection of a partial privative clause [ emphasis added ]. [ 39 ] The presumption of reasonableness has not been rebutted regarding the second issue, which engages the question of whether the protection afforded in

section 8 of the AHRA applies to childcare (and other personal care) provided in one’s own home. [ 40 ] Having concluded the standard of review to be applied to the Chief Commissioner’s decision, and all of its component parts, is reasonableness, I will now turn to an analysis of whether the Chief Commissioner’s decision to dismiss the complaint was reasonable. Was the Chief Commissioner’s Decision Reasonable? [ 41 ] Reasonableness assesses the existence of “justification, transparency and intelligibility within the decision making process” ( Dunsmuir at para 47 ).

As stated in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para 16 , [2011] 3 SCR 708, “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.” [ 42 ] The Chief Commissioner’s gatekeeping function involves the following: • reviewing the Director’s decision and supporting factual information; • reviewing any additional information provided by the parties; • applying general human rights law; • applying his own common sense and experience as a decision maker within a larger administrative structure; and • analyzing whether all of this information constitutes a reasonable basis in the evidence to proceed to a hearing. [ 43 ] There are two components to the Chief Commissioner’s decision in the present case: his conclusion that s 8 of the AHRA covered an advertisement for childcare in a private home, and that a BFOR existed, justifying the Respondent’s refusal to interview or hire the Applicant.

I will address each of these in turn. Does this fall within s 8 of the AHRA? [ 44 ] While the Director concluded the dispute between the parties was a private matter, outside the purview of the AHRA , the Chief Commissioner disagreed. Despite the fact the nature of the work involved the care of a child in one’s private home, he held the advertisement fell within s 8 of the AHRA. Implicitly, he concluded that the Respondent’s stated preference for an older female was a prima facie case of discrimination.

In so concluding, the Chief Commissioner noted that other jurisdictions have decided to exempt these relationships from the purview of human rights legislation. [ 45 ] The AHRA does not specifically exempt childcare or personal services within a private home from the prohibition against discrimination in employment advertisements. The

section is broadly worded by using the phrase: “No person shall use or circulate any form of application for employment or publish any advertisement in connection with employment or prospective employment or make any written or oral inquiry of an applicant,” expressing preference that indicates discrimination on prohibited grounds ( AHRA , s 8(1)). [ 46 ] In contrast, other jurisdictions exempt employment involving services in a private home from their human rights legislation: See Human Rights Act , RSY 2002, c 116, s 11(3); The Human Rights Code , CCSM, c H175, s 14(8); Human Rights Act , SNu 2003, c 12, s 9(7); Human Rights Code , RSO 1990, c H 19, s 24(1)(c); Human Rights Act , RSNS 1989, c 214, s 6(c)(1); and Saskatchewan Human Rights Code, SS 1979, c S-24.1, s 16(8). [ 47 ] For example, the Yukon Human Rights Act reads: 9 No person shall discriminate ... (

b) in connection with any aspect of employment or application for employment. ... 11(3)

Section 9 does not apply to (

a) the employment of a person to provide services in a private home... [ 48 ] Like Alberta, other jurisdictions provide an exemption to the prohibition of discrimination in employment advertising based on undefined “ bona fide ,” “genuine,” “good faith,” or “justified” occupational requirements: See Human Rights Code, RSBC 1996, c 210, s 11; Human Rights Act, RSNB 2011, c 171, s 2.2; Human Rights Act, RSPEI 1988, c H-12, s 6(4); Human Rights Act, SNWT 2002, c 18, s 8(2); Human Rights Act, 2010, SNL 2010, c H-13.1, s 14(5); Charter of Human Rights and Freedoms, CQLR c C-12, s 20.

[ 49 ] Based on my review of the legislation referenced above, and given the absence of an exemption for personal services in a private home in the Alberta statute, the Chief Commissioner’s conclusion that babysitting in a private home falls within the scope of

section 8 of the AHRA is reasonable. [ 50 ] The Chief Commissioner’s conclusion is reasonable as it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. In the words of the Supreme Court in McLean v British Columbia (Securities Commission) , 2013 SCC 67 at para 40 , [2013] 3 SCR 895: “The bottom line [is] that the Commission holds the interpretative upper hand: under reasonableness review, we defer to any reasonable

interpretation adopted by an administrative decision maker, even if other reasonable

interpretations may exist.” Was it Reasonable to Find a BFOR? [ 51 ] The Chief Commissioner concluded that because no specific exemption existed in the Alberta human rights legislation, the legislature intended the statute’s application to personal services in a private home; and that any defences must be established through the provisions of that legislation. As stated in his reasons: [T]he inference must be that the legislators did not intend a broad exemption to be applied to this type of relationship.

Rather, legislators intended that any defences to prima facie discrimination be established through the applicable sections of the Act (that the discrimination is “reasonable and justifiable” pursuant to s 11 or that the discriminatory requirement is a bona fide occupational requirement). [ 52 ] The Chief Commissioner went on to conclude that the Respondent’s preference as to who looks after her child in her home is a bona fide occupational requirement under section 8(2) of the AHRA .

He reasoned: While I would have preferred that the Respondent specifically provide her reasons for preferring a female babysitter, I am prepared to accept that her preference as to who looks after her young child in her home, should be accorded utmost deference and is a bona fide occupational requirement. Numerous reasons for the Respondent’s preference can be envisioned including her child’s specific needs and comfort level with a particular type of caregiver.

I have some sympathy for the Complainant’s position; however, I am reluctant, given the particular facts of this Complaint to require the Respondent to attend a Tribunal and defend her decision regarding her child’s particular needs [ emphasis added ]. [ 53 ] The Applicant argues that the Chief Commissioner’s decision was unreasonable because no justification (or response of any kind) was provided by the Respondent, therefore, there was an insufficient evidentiary basis to conclude a BFOR existed. [ 54 ] In this context, it is worthwhile to observe, by analogy, that in some Canadian jurisdictions, legislation exempting discrimination in a private home or residence also defines a BFOR in the context of “fostering or maintaining a desired environment.” For instance, section 14(8) of Manitoba’s The Human Rights Code reads: For the purposes of this section, it is a bona fide and reasonable requirement or qualification where, in choosing a person to provide personal services in a private residence, the employer discriminates for the bona fide purpose of fostering or maintaining a desired environment within the residence … [ 55 ] Similarly, section 9(7) of Nunavut’s Human Rights Act provides that for the purpose of that section, “it is a justified occupational requirement where, in choosing a person to provide personal services in a private residence, the employer discriminates for the genuine purpose of fostering or maintaining a desired environment within the residence.” [ 56 ] In effect, while the Alberta legislation does not provide exemption for employers in private homes, it is not unreasonable for the Chief Commissioner to have made the inference that similar qualification by a private home employer in Alberta could amount to a bona fide occupational requirement, given that some provincial legislatures have expressly declared that such qualification or discrimination constitutes a BFOR. [ 57 ] That said, the Applicant has a point in questioning the Chief Commissioner’s decision in the absence of a response from the Respondent.

The Respondent did not appear before the Commission to make an explicit case for a BFOR. It is not discernable why the Chief Commissioner was reluctant to require the Respondent to attend a hearing “given the particular facts of this complaint.” While there is no obligation in the AHRA for a Respondent to respond to a complaint, the Chief Commissioner has the discretion and authority to compel a Respondent to attend a human rights tribunal to defend the discrimination, notwithstanding the lack of response to the complaint: AHRA , ss 26(3), 27.

Nonetheless, the only facts before the Chief Commissioner were that the child was a five year old boy, and the care sought for him was to be provided in the Respondent’s home. [ 58 ] On the one hand, the Chief Commissioner’s reasons suggest the Respondent’s preference, without more, was a bona fide occupational requirement because the child was young and the services were to be provided in her own home. On the other hand, the Chief Commissioner suggests the preference must be explained.

Because the Respondent did not provide any explanation for her preference for an older female, the Chief Commissioner was prepared to “envision” or infer those reasons, and by doing so, came perilously close to engaging speculation or conjecture in finding a BFOR. [ 59 ] While speculation or conjecture is problematic, the Chief Commissioner is permitted to draw reasonable inferences from the facts.

Further, his role and expertise is to interpret the legislation in ways that make practical and legal sense. [ 60 ] I find guidance in the Supreme Court’s comments in its recent decision in Elk Valley at para 20 : Reviewing courts generally approach the decisions of tribunals under human rights statutes with considerable deference. It is the tribunal’s task to evaluate the evidence, find the facts and draw reasonable inferences from the facts. And it is the tribunal’s task to

interpret the statute in ways that make practical and legal sense in the case before them, guided by applicable jurisprudence.

Reviewing courts tread lightly in these areas. [ 61 ] Based on the facts and evidence before the Chief Commissioner, and noting the legislative recognition of a BFOR in other jurisdictions, I am satisfied that the Chief Commissioner drew a reasonable inference that the Respondent’s preference for an older female to babysit her young son could be easily explained: See Manitoba’s The Human Rights Code , s 14(8); Nunavut’s Human Rights Act , s 9(7). [ 62 ] Further, in Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at paras 11-12 , 15, [2011] 3 SCR 708, the Supreme Court of Canada prescribed that when applying a reasonableness standard to an administrative decision, the court “may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.” In this regard, the Court held that a reviewing court must pay “respectful attention to the reasons offered or which could be offered in support of a decision,” and “even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them ( emphasis added ).” [ 63 ] Here, the record indicates the Respondent received notice (by recorded mail) of the Commission’s letter dated May 14, 2015, notifying her of the Applicant’s Request for Review of the Director’s dismissal of the complaint.

Her name appears as the signatory who received the letter on May 20, 2015. This was a year after she posted the advertisement online. [ 64 ] The record shows numerous other letters were sent to the Respondent by regular mail and numerous voice mail messages were left for her. Notably, her address and phone number were discernable through her Kijiji advertisement, but this is not necessarily the case with all such advertisements.

The Respondent provided no response, but it is worth repeating that she had no obligation to, unless the Chief Commissioner referred the matter to a hearing and compelled her attendance under the provisions of the AHRA . [ 65 ] By the time the Applicant filed his application for judicial review, almost 20 months had passed since the placement of the advertisement, and the Respondent could not be located to be served.

He attended in Court to obtain a substitutional service order, but it is unknown whether the Respondent actually received notice of this application. [ 66 ] If this matter was referred to a hearing, it is the Commission, and ultimately the taxpayers of Alberta, that would bear the cost of locating the Respondent and demonstrating she had actual notice of the hearing.

One can legitimately question the practicality of referring complaints to a hearing in these circumstances. [ 67 ] For these reasons, and based on the record before me, I conclude that the Chief Commissioner’s decision to dismiss the complaint was reasonable. Legislative Review and Reform is Needed [ 68 ] Alberta human rights legislation was amended in 1996 to improve protection for “domestic and farm workers”: Alberta Legislative Assembly, Hansard, 23 rd Leg, 4 th Sess, (April 18, 1996) at 1230.

The predecessor legislation, the Individual’s Rights Protection Act , RSA 1980, c I-2 exempted certain types of employment from the protections afforded by sections 7 and 8 ; namely, a domestic employed in a private home and a farm employee who resides in the private home of the farmer who employs him. [ 69 ] While the intent was laudable, as demonstrated by this application, it has resulted in legislative over-reach.

Further, the legislators could not have anticipated the development of online employment advertising through sites like Kijiji, and the practical difficulties this presents. [ 70 ] The issues raised in this application highlight the tension between human rights legislation and the autonomy to make decisions about personal care provided in one’s own home.

The Director was alert to the possibility of human rights legislation inappropriately entrenching into “one of the most revered relationships recognized in society and law.” But equally, compelling concerns exist for any personal services provided in a private home, including care for an aged relative or an ill spouse. [ 71 ] The Commission suggested that both decisions open to the Chief Commissioner would be reasonable: dismissing the complaint or referring the matter to a hearing. I agree that the unique circumstances of this case, allow for multiple reasonable

interpretations of

section 8 of the AHRA . This is highlighted by the differing reasons of the Investigator, Director, and the Chief Commissioner. [ 72 ] But the possibility of multiple, reasonable

interpretations, in this context, leads to uncertainty and unpredictability. This application suggests a Respondent may be better off remaining silent to allow the Chief Commissioner to infer a BFOR, than risk responding in a way that does not satisfy the Commission. And how is anyone to predict when the Chief Commissioner is prepared to infer a BFOR? Would he have done so if the child in question was a 10 year old girl? Or if the Applicant was a 60 year old male?

The apparent absence of any jurisprudence discussing a BFOR in the context of personal services in a private home adds to the uncertainty. [ 73 ] The reasoning of the Chief Commissioner in finding a BFOR and his reluctance to compel the Respondent to attend a hearing to explain her employment choice and decision underscore that it may be inappropriate to subject employers – in situations where the provision of personal services in a private home setting is engaged – to strict advertising and hiring requirements.

The Chief Commissioner’s reasons also suggests that an express exemption for provision of personal services in a private home may be warranted, as it is for tenancies in private homes. [ 74 ] The complexity of this situation, the difficulty of balancing competing interests in the face of broadly worded legislation and the legitimate concerns regarding unpredictability and uncertainty could be solved with legislative clarity in this area. I urge this be done.

Conclusion [ 75 ] I find that the Chief Commissioner’s decision to uphold the Director’s decision dismissing the complaint was reasonable. It was within a range of acceptable outcomes having regard to the facts and the law. [ 76 ] Accordingly, the application is dismissed. Heard on the 6 th day of April, 2017. Dated at the City of Edmonton, Alberta this 4th day of December, 2017. Dawn Pentelechuk J.C.Q.B.A. Appearances: James Cyrynowski on his own behalf Janice Ashcroft, Q.C. for the Respondent, Alberta Human Rights Commission