The Ontario government has permitted daycare centres to reopen as of June 12, but requires strict adherence to safety rules in order to manage the risk of transmitting COVID-19.

Among other things, the rules require that daycare groups be limited to 10 people or fewer, which must include both children and staff. This is far below the usual capacity of many daycare centres in the province.

While some parents are opting to hold off putting their children back in daycare until Ontario’s COVID-19 numbers are lower, some daycare centres are sure to encounter more demand for spots than they are permitted to offer. The owners of these centres must somehow decide who will get a spot at the daycare and who will not.

Of course, discrimination is prohibited in the context of the Ontario Human Rights Code. Beyond that, however, the concept of favouritism is infrequently litigated. Suppose, for example, that a restaurant owner were to select a customer from the middle of a line outside the restaurant, as opposed to the person at the front of the line, just because the owner had a preference for the person in the middle. This would anger the others in the line, but it is far from clear that it is illegal.

The example of the restaurant owner is preference shown in a frivolous context in which nothing more than a meal at a restaurant is at stake. The decision of who should be given a spot in a daycare centre, on the other hand, may well have far-reaching consequences for the parents of the children requiring the service. It could determine which of them may return to work now, and which may lose their jobs altogether if a work opportunity is presented now that will not be presented later.

The decision in Glasgow v. Deputy Minister of Public Works and Government Services Canada et al., 2008 PSST 7, may provide some guidance as to how courts will view the matter of preference. While it is an administrative decision of the Public Service Staffing Tribunal and therefore only directly applicable to those governed by Canada’s Public Service Employment Act, it has the following to say at para. 41 about the use of “personal favouritism” in deciding appointments:

“Undue personal interests, such as a personal relationship between the person selecting and the appointee should never be the reason for appointing a person. Similarly, the selection of a person as a personal favour, or to gain personal favour with someone else, would be another example of personal favouritism.”

This suggests that the owners of daycare centres may come under legal scrutiny for granting a spot in a centre to one family over another simply because of a personal relationship with that family. While daycare centres are most often private businesses, in the context of the COVID-19 shutdown and gradual reopening, they perform an important public function. The provincial government has left daycare centre owners the important task of determining who gets a spot. There is some precedent for private entities being impressed with public law liabilities in the event that government delegates to them authority over what are arguably public functions. Unbeknownst to the owners, their task may well be fraught with liability.

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