Canada: Conducting Reference Checks Without Running afoul of Privacy Legislation

Conducting reference checks is a critical part of the hiring process. However, given the existence of privacy legislation that restricts employers' ability to collect, use, disclose and retain personal information, such checks are not always clear-cut. Private sector employers in British Columbia, Alberta and Québec, as well as federally regulated employers, are subject to personal information protection legislation.

Even in jurisdictions without privacy legislation, employers should be cognizant of Canada's growing privacy culture and the expectation of many applicants for employment that prospective employers will safeguard their personal information. All employers are cautioned to incorporate developing privacy laws into their employment practices, including reference checks.

Q. How does personal information protection legislation impact upon an employer's ability to conduct reference checks?

A. Under such legislation, consent is generally required before collecting or disclosing a person's personal information. This includes collecting, using or disclosing an opinion about the person. In British Columbia and Alberta, however, "employee personal information" is dealt with differently.

Q. How is "employee personal information" dealt with in British Columbia and Alberta?

A. Alberta and British Columbia's Personal Information Protection Act (PIPA) allows employers to collect, use or disclose "employee personal information" without the consent of the employee or the prospective employee if it is reasonable for the purposes of establishing, managing or terminating an employment relationship. As a result, the prospective employer does not require the applicant's consent when conducting a reference check.

Q. Are there any obligations on employers in British Columbia and Alberta when conducting reference checks?

A. Yes. Employers must give the applicant advance notice that it intends to contact previous employers or conduct background checks, explain to the applicant in advance the purpose for collecting, using or disclosing the information (i.e., to make a hiring decision), and make certain that the collection and use of the information is "reasonably required" for the establishment of the employment relationship (i.e., to assess the applicant's fitness for the job).

Q. Is it advisable for employers to obtain consent even if not strictly required?

A. A prospective employer may still wish to obtain written consent, particularly if the prospective employer anticipates calling past employers who are not listed as referees.

Q. If an applicant lists a former employer as a referee, has the applicant consented to the prospective employer contacting that referee?

A. In such circumstances, the applicant will be considered to have implicitly consented to that former employer disclosing his/her employee personal information to the prospective employer. However, if a former employer is not listed as a referee, then that former employer may be in breach of the PIPA if it discloses the applicant's employee personal information without consent.

Q. How can employers avoid being in breach of the PIPA in this respect?

A. To avoid any potential breaches, employers are advised to obtain an applicant's consent up front to contact persons other than those listed by the applicant as referees. This consent could be requested on the job application form.

Q. Once the personal information has been collected, used or disclosed in the application process, are there other PIPA requirements that apply to that information?

A. Yes. Employers are required to make reasonable efforts to ensure the personal information collected is accurate and complete, undertake reasonable security arrangements to protect the collected information from unauthorized use, disclosure or destruction, and retain information used to make a decision for at least one year after its use so that the applicant has a reasonable opportunity to obtain access.

Q. Is an applicant entitled to obtain the information used by an employer in the decision-making process?

A. Although there are some exceptions, an applicant is generally entitled under the PIPA to access his/her personal information that is under the control of the prospective employer, as well as information about how his/her personal information has been and is being used by the prospective employer, and the names of individuals and organizations to whom the personal information has been disclosed.

Q. What other tips should employers follow when conducting reference or background checks?

Avoid violating human rights legislation — When conducting background checks for education, previous employment and criminal records,1 employers must comply with human rights legislation in the applicable province. Employers are restricted from basing hiring decisions on prohibited grounds such as race, creed, ethnic origin and criminal record.

Beware of differences between the provinces — Employers need to be cognizant of the province in which the employee will be employed. In Ontario, an employer can refuse employment to an individual convicted of a Criminal Code offence for which a pardon has not been granted, regardless of the prospective job and/or the type of offence. In British Columbia and Québec, however, an employer can only refuse employment to an individual convicted of a Criminal Code offence for which a pardon has not been granted if the offence for which the individual was convicted is related to the intended employment.

Consider the timing of any background check — As there is always a risk of learning information about a prohibited discriminatory ground in a background check, consider performing the background check only after a conditional offer of employment has been made to the candidate.

Understand the activities of your background check provider — Because of the agency relationship between a prospective employer and a background check provider with which it has contracted, a prospective employer may be liable for any unlawful acts committed by a background checker, including with respect to unlawful discrimination and breaches of privacy. Ensure that your background checker is aware of its legal obligations and has measures to reduce liability.

Keep good notes — Record the information requested and provided during reference checks, and retain those notes in an employee's file for at least one year for applicants not hired.

Always follow through — If you make an offer of employment conditional on a positive reference check, do not allow the employee to begin work until the results of all reference checks have been received and reviewed. If you cannot wait for the results, consider inserting a clause in the employment contract that gives you the ability to terminate the employee's employment for cause in the event that the results of the reference check are unsatisfactory.

Important Note

Employers in Alberta should be aware that Bill 54: Personal Information Protection Amendment Act, 2009 has received Royal Assent. At the time of writing, it is not yet in force. Bill 54 contains changes to Alberta's PIPA. The changes, in part, expand an employer's ability to collect, use or disclose "employee personal information" without an individual's consent to include the scenario whereby that information is collected, used or disclosed for the purpose of "managing a post-employment" relationship. Once Bill 54 becomes law, organizations will not be required to notify former employees of the disclosure of employee personal information to prospective employers, although it may still be prudent to do so in certain circumstances. For more information on Bill 54, see the " Privacy Report: Bill 54 Proposes New Notification Requirements for Privacy Breaches and for Using Foreign Service Providers ," by Erika Ringseis and Matthew Wanford in this edition of the LEQ.

1 For more information, see our National Report: Pre-Employment Screening: Changes to the Criminal Records Check Process .

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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

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

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (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

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’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.


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.


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 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.


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.


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.


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.


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

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

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

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