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Candidate Background Checks

Updated: May 14

By: George Waggott, founder and Roberto Fonseca-Velazquez, summer law student,

George Waggott Law

Background checks encompassing criminal records, credit, driving history, resume and reference checks have become increasingly common for employers to conduct in Canada and elsewhere. Employers can use the information they collect through these background checks to make the ultimate decision on whether to hire a potential candidate. Most of these background checks are legal, but only to the extent that they comply with the rules prescribed by privacy, human rights, and applicable regulatory laws. Before taking a deeper dive into the kinds of background checks which employers might conduct, it is prudent to speak broadly about checking on an employee’s history in general.

Employers who go digging for information on employees should be careful about the risks associated with potentially engaging in human rights-based discrimination in employment. This risk arises because human rights legislation, both at the Canadian federal and provincial levels, prohibits discrimination based on a list of protected grounds that include race, sex, gender, identity, age, family status, disability, criminal background and other categories. If a candidate can show that a hiring decision was due at least in part to one of these protected grounds (or appears to have been influenced by one of the protected grounds) then the candidate may have a successful challenge to the decision not to hire them. The onus in any such case would then be on the employer to prove to a human rights tribunal (or court of law) that there was no discrimination. Therefore, it is best to keep background checks limited to those where there is a genuine “need to know” relevant information in order to hire for the position or the organization. The caution therefore is that employers will likely only want to proceed with deep background checks on candidates that are being seriously considered.

Police Record Checks

In Ontario, a criminal record check (sometimes referred to as a background check) is legal and is governed by the Police Record Checks Reform Act. This legislation allows employers to conduct three different types of criminal record checks:

1.      Criminal record check. This will disclose applicable criminal convictions and findings of guilt under Canada’s federal Youth Criminal Justice Act.

2.      Criminal record and judicial matters check. This will disclose applicable criminal convictions, findings of guilt under the federal Youth Criminal Justice Act, absolute and conditional discharges and outstanding charges, arrest warrants and certain judicial orders.

3.      Vulnerable sector check. This will disclose the same information disclosed in a criminal record and judicial matters check, as well as applicable findings of not criminally responsible due to a mental disorder, record suspensions (pardons) related to sexually-based offences and, in certain circumstances, non-conviction charges related information when a strict test is met.

It is important for employers to note that the Police Record Checks Reform Act also has built-in protections for employees, including the fact that certain information cannot be disclosed under the Act, including whether the individual was a victim or witness of a crime or if they had non-criminal contact with police while they were experiencing a mental health crisis (meaning it did not lead to charges). Additionally, consent must be provided by the individual who is being asked to provide the employer with a police records check for the first time. That person must receive the results of their police records check to confirm they are factually correct before they can be asked to share the results with the prospective employer.

Credit History Checks

An employer can perform a credit check on an employee or prospective employee under the Ontario Consumer Reporting Act. This is usually done if a candidate is being considered for a finance role or a regulated industries position. This type of check is conducted to identify if an individual is in financial distress or exposed to a history of unreliable behaviour. The information disclosed by the check can only be used for employment purposes. Employers are required to provide written notice to prospective employees or receive consent from the prospective employee in order to avoid any allegations that an invasion of privacy occurred.

For federally-regulated employers, Principle 4.3 of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”) states that, “the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information”, and a credit check and the related information disclosed by the check constitutes “personal information” as contemplated by PIPEDA. As a result, in all cases the employer will need to make sure that it adopts appropriate policies, obtains relevant consents, and handles relevant information in a manner compliant with applicable law.

Driving Record Checks

A driving record check, also sometimes called a driving abstract, involves requesting a government-issued document with information about a driver and their driver’s licence. An employer is legally allowed to request a driving record check if a potential employee will be driving a company vehicle. Driving record checks may be uncertified or certified. Uncertified records are often sufficient for many employers. A certified record has an embossed seal from the Ministry of Transportation and is typically requested when it is required for legal reasons, which may include insurance coverage. There is little concern for employers requesting this check if it is relevant to the employment. However, as is the case with the checks referred to above, consent should be provided by the candidate to avoid any invasion of privacy issues or related concerns.

Final Note

There is not much worry for employers conducting background checks when they are directly relevant to the employment and consent is provided by the candidate. Care should always be given to avoid any discrimination allegations arising from human rights legislation. Further, with the increasing concern for privacy and related ongoing changes to workplace laws, many rules and obligations will likely be subject to change in the coming years. As a result, employers should ensure they are and remain up to date with any potential laws that may affect conducting background checks.

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