Background checks encompassing criminal records, credit, driving history, resume and reference checks have become increasingly common for employers to conduct in Ontario.
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An employer can refuse to hire an individual because they have a criminal record (except provincial offences and pardons as per Ontario human rights law) or poor credit history, driving history, resume and negative references.
Privacy, human rights and regulatory laws govern the law of background checks in Canada.
This article will discuss the law of all these kinds of background checks (criminal records, credit, driving history, resume and reference checks).
Criminal Records Check
A criminal record check, also known as a police record check is legal. An employer in Ontario is free to conduct a police record check. Any employer can conduct these kinds of background checks – they do not need a special reason or be in a special industry except for the below-noted “vulnerable sector check”.
Employers can request a police record check from municipal police like the Toronto Police Service or the Ontario Provincial Police. There are also private businesses that provide police record checks services for employers.
- Criminal record check which can disclose adult criminal convictions and findings of guilt under the Youth Criminal Justice Act.
- Criminal record and judicial matters check which can disclose adult criminal convictions, findings of guilt under the Youth Criminal Justice Act during the access period, absolute and conditional discharges, outstanding charges, arrest warrants and some judicial orders. A peace bond appears on a criminal record, and judicial matters check.
- Vulnerable sector check includes the same type of information disclosed in a criminal record and judicial matters check and court findings of not criminally responsible due to mental disorder, record suspensions, and pardons related to sexually-based offences and in certain circumstances, non-conviction charge related information. The only employers who can request a vulnerable sector check are employers who employ workers or volunteers who have jobs where they are in positions of trust or authority over children (under age 18) or vulnerable persons.
See this table for all the kinds of disclosure that can or cannot be made under the three above-noted police records checks.
The Police Record Checks Reform Act has built-in protections for employees. Among other things, the Police Record Checks Reform Act requires that:
- Consent must be provided by the individual who is being asked to provide 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 employer.
- Some background check information cannot be disclosed under the Police Record Checks Reform Act, including whether the individual was a victim or witness of a crime or if the individual had non-criminal (i.e., did not lead to charges) contact with police while they were suffering from a mental health crisis.
Credit History Checks
Employers may conduct a credit check on potential hires; however, they should get the potential hire’s consent to run the credit check otherwise it could be a breach of the new common law tort of invasion of privacy. 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 constitutes “personal information”. Federally regulated employers who fail to get consent for credit history checks could be prosecuted.
Employers generally use credit checks to confirm the identity of hires and as an added measure to check a hire’s suitability for employment, especially in finance and regulated industries (credit checks can show bankruptcy). To that end, it is mostly only employers hiring for employees who have access to cash and bank accounts who run credit checks.
Care should be exercised in performing credit checks because employers will inevitably require the potential hire’s birthdate to run the credit check. There is a risk an employer could violate the Human Rights Code by refusing to hire an individual based on a failed credit check after learning their age.
Driving History Checks
Employers are lawfully allowed to order a 3-year driver’s record to vet a potential employee who will be driving a company vehicle. This record does not show medical suspensions or the individual’s address so as to avoid some human rights and privacy law concerns. But, it does help employers by showing demerit point total and active fine suspensions, Highway Traffic Act and Criminal Code of Canada convictions, suspensions and reinstatements over the past three years. Anyone can order this record as long as they provide a driver’s licence number. Consent should be required, however, before requesting this record otherwise, again, it could be a breach of the new common law tort of invasion of privacy.
Resume and Reference Checks
Many employers contact the candidate’s past employers and managers as indicated on CVs to verify the potential hire is who she says she is. This is perfectly lawful. There are generally no legal restrictions on resume and reference checks. However, like all background checks, care should be exercised not to learn any private information or information about a protected human rights grounds so there is no breach of privacy laws or human rights law, respectively.
Social Media Checks
Smart employers review a candidate’s public social media profiles to ensure the candidate is the right fit. Here, there are generally no legal restrictions.
Jeff is a lawyer in Toronto who works for a technology startup. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles. Jeff is interested in Canadian business, technology and law, and this blog is his platform to share his views and tips in those areas.