THE EMPLOYERS' EDGE
Employee Background Checks in Ontario
Employers are increasingly asking their job applicants to consent to police record checks (often referred to as background checks).
In some circumstances, these checks are necessary to protect vulnerable people, such as for positions where the applicant will be working with children, elders or persons with disabilities. In other cases, the checks are used simply as an additional screening tool.
Either way, it is important for employers requesting background checks to understand the privacy and human rights implications that arise when requesting and using this type of information.
The Ontario Police Record Checks Reform Act
The Ontario Police Record Checks Reform Act (the “PRCRA”) provides a set of standards that govern how police record checks are conducted and disclosed in the province.
Consent of Applicant
Under the PRCRA, an employer must obtain an applicant’s initial consent to conduct a police record check. Section 8(3) provides that:
A police record check provider shall not conduct a police record check in respect of an individual unless the request contains the individual’s written consent to the particular type of check.
Disclosure of Results
A second consent from the applicant is also required to then permit disclosure of the completed record check to the employer. Section 12 of the PRCRA states:
- A police record check provider shall disclose the results of a police record check to the individual who is the subject of the request and shall not disclose the results to any other person, subject to subsection (2).
- If an individual provides written consent after receiving the results of a check about himself or herself under subsection (1), the police record check provider may provide a copy of the information to the person or organization who requested the check under subsection 7(2) or to another person or organization the individual specifies.
The Ministry of the Solicitor General has stated that if an individual declines to provide consent to conduct a police record check and/or disclose a completed police record check to an employer or third party, the organization may choose to remove the individual from the process.
Use of Information
The information obtained from a background check must only be used for the purpose for which it is requested (as part of the screening process for employment) or for purposes authorized by law. Section 13 of the PRCRA states:
A person or organization that receives information under subsection 12(2) shall not use it or disclose it except for the purpose for which it was requested or as authorized by law.
Obligations under the Ontario Human Rights Code
Under section 5 of the Ontario Human Rights Code (the “Code”), employers are prohibited from discriminating against job applicants on the basis of a “record of offences”.
“Record of offences” is narrowly defined in subsection 10(1) of the Code to mean a conviction for:
- An offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or
- An offence in respect of any provincial enactment.
This means that employers are allowed to ask about and consider unpardoned Criminal Code convictions when hiring. However, it would be discriminatory to consider information about provincial offences and pardoned Criminal Code convictions, unless an exception applies.
Section 24(1)(b) of the Code provides such an exception where an employer can show that the requirement to consider an applicant’s record of offences is reasonable and bona fide because of the nature of the job. A reasonable and bona fide occupational requirement is a requirement that every individual performing a specific job must meet because the requirement is essential to the effective and safe performance of the job. Where there is a bona fide occupational requirement, accommodating the needs of an individual with respect to that requirement would impose undue hardship based on health, safety and/or cost.
For example, it would be a reasonable and bona fide requirement for a school board to only hire an applicant who does not have any convictions for careless driving (a provincial offence under the Highway Traffic Act) for the position of a school bus driver.
When to Conduct a Background Check
A background check should be the last step in the recruitment process. An employer should only request and conduct such a check after a decision has been made to offer the applicant the job. A conditional offer of employment can then be made, with the offer being conditional on a satisfactory outcome of the background check.
Reach out to our team at CCPartners for any questions and advice on conducting background checks as part of your onboarding process.
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