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.
background checking in Canada.