Canada: Top 10 Employment & Labour Issues: #4: Background Checking in Canada

Last Updated: December 19 2014

Conducting background checks into the educational, employment, criminal or credit history of candidates for employment can form part of a company’s recruitment processes. Below is a brief overview of the Canadian legislation to be considered when implementing policies and procedures for background checking in Canada.


What legislation must be considered before conducting background checks?

(a) Privacy Legislation

Federal privacy legislation governs the collection, use and disclosure of personal information in the commercial and consumer context. However, the privacy legislation applicable to the employment relationship depends on the province of employment, unless a business is subject to federal employment and labour law. Comprehensive legislation regulating collection, use and disclosure of employee personal information in the private sector currently exists in Alberta, British Columbia, Quebec and federally. Manitoba has also introduced comprehensive privacy legislation, which is not yet in force. Even where collection is lawful, employee personal information collected as part of background-check processes should only be used for the purposes collected and should be subject to appropriate confidentiality safeguards. 

(b) Human Rights Legislation

Each province in Canada and the federal jurisdiction have enacted human rights legislation that prohibits discrimination in employment based on specified individual characteristics, beliefs and relationships known as “prohibited grounds of discrimination.” The human rights statute applicable to a particular business limits an employer’s ability to use information collected during a background check when making employment decisions if that information relates to a prohibited ground of discrimination. 


In addition to the common prohibited grounds of discrimination (race, colour, religion, age, sex, sexual orientation, marital status, family status and disability), some Canadian jurisdictions also list as prohibited grounds criminal convictions that are unrelated to the position sought, criminal convictions for which a pardon has been obtained and/or convictions of an offence under provincial law.


What types of background checks can employers conduct?​

(a) Reference and Educational/Professional Credentials Checks

Reference checking and verifying educational and professional credentials is permissible in Canada. Where privacy legislation applies to the employment relationship, consent to the collection and use of this type of personal information must be obtained.

(b) Criminal Record Checks

Some privacy legislation imposes limits on the collection of background check information to what is reasonable in the circumstances, having regard to the purposes for collecting the information and the position the job applicant is seeking. This means that in some jurisdictions, such as Alberta, British Columbia, Quebec and the federal jurisdiction, employers may be only permitted to seek consent and conduct more limited criminal record checks, i.e., those checks that are reasonably required, in order to evaluate the candidate for the position sought. 


In several Canadian jurisdictions, human rights legislation restricts an employer’s ability to make employment decisions on the basis of an individual’s record of convictions, which is defined such that the use of information regarding a criminal conviction that is unrelated to the position sought is prohibited1.  In Ontario and the federal jurisdiction, an employer cannot make an adverse job decision based on a criminal conviction for which a pardon has been obtained or a provincial offence. Even in provinces that do not prohibit discrimination in employment on the basis of an individual’s record of convictions, a criminal record check may reveal information related to a different prohibited ground of discrimination. For example, certain criminal convictions (such as driving while impaired) can signify drug or alcohol dependency, both of which are considered “disabilities” under Canadian human rights legislation. 


(c) Credit History Checks2


The privacy concerns relating to credit history checks are similar to those arising when collecting and using information related to a candidate’s criminal record. Requiring that candidates consent to a credit history check may be unlawful in those jurisdictions in which limits are imposed on the scope of pre-employment inquiries to what is reasonable in the circumstances. Employers who are hiring in these jurisdictions should carefully evaluate whether the credit information it seeks is reasonably related to the position for which the applicant is being considered.

Pre-employment credit checks have been specifically challenged in Alberta. In a 2010 ruling, the Alberta Office of the Information and Privacy Commissioner found that pre-employment credit checks for a retail employer were not reasonable as there was no evidence that an applicant’s credit history provided reliable information about whether a job applicant would commit theft or fraud.3 

1 For example, the human rights legislation in the provinces of British Columbia, Manitoba, Newfoundland, Prince Edward Island and Quebec limits an employer’s ability to use criminal record information when making employment decisions.

2 When conducting a credit history check, applicable credit or consumer reporting legislation may govern the type of information that an employer can receive and may contain specific notification requirements.

3 See Investigation Report P2010-IR-001

background checking in Canada.

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Contact the Author?
Click here to email the Author
In Association with
In Partnership with
Other Canada Advice Centres
Competition and Antitrust
Mergers and Acquisitions
Labour and Employment
More Advice Centers
Significant Recent Cases
A list of the most recent and notable Blakes cases that gives you an overview of the firm's depth of knowledge and experience.
Useful Resources
Organizations should take preventative steps prior to a breach occurring by having reasonable policies and procedural safeguards in place, and conducting necessary training.
This checklist is intended to help organizations take the appropriate steps in the event of a privacy breach and to provide guidance in assessing whether notification to affected individuals is required.
Organizations subject to the Personal Information Protection Act (PIPA) are required to report a breach of personal information to the Commissioner.
An Act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions and by amending the Canada Evidence Act, the Statutory Instruments Act and the Statute Revision Act.
Designed as one of the most stringent anti-spam regimes in the world, the legislation imposes important restrictions on the use of electronic messages to encourage participation in commercial activities.
Upcoming Events
Our professional development seminars provide legal and other professionals with access to programs that have been accredited by those governing bodies in various jurisdictions across Canada that have set educational credit requirements.
Tools
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.