by Karen Sargeant
former of McCarthy Tetrault
You have found the perfect employee. Your intuition tells you the candidate is exactly what you’ve been looking for. But will she really be the perfect employee? Reference and background checks are a good way to ensure that you have the right person for the job, but they’re not always straightforward.
Here are some tips to keep in mind if you decide to do a reference or background check in Canada:
1. Ensure that you are not violating human rights legislation. When conducting background checks for education, previous employment, and criminal records, you must comply with the human rights legislation in the applicable province, territory, or federal jurisdiction.
Employers are restricted from basing hiring decisions on many of the same prohibited grounds U.S. employers are accustomed to – race, creed, age, religion, disability, gender, marital status and ethnic origin, etc. But in Canada, you also can’t discriminate based on sexual orientation or, in some provinces, depending on the situation, criminal record.
There are subtle differences from one province or federal jurisdiction to another, regarding the prohibited grounds of discrimination. Since information related to prohibited grounds can be exposed in a background check, you have to be careful about what you consider when evaluating background check results.
2. Beware of differences between the jurisdictions. It’s important to consider the province where the candidate will be employed. For example, in Ontario, an employer can refuse employment to an individual convicted of a Criminal Code offense for which a pardon hasn’t been granted regardless of the prospective job and/or the type of offense.
In other provinces such as British Columbia, for example, an employer can refuse employment to an individual convicted of a Criminal Code offense only if the offense is related to the intended employment and no pardon has been granted.
3. Consider the timing of the background check. Because 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.
4. Ensure that you meet all required notice and consent requirements. Other than requirements to obtain consent to collect, use, and disclose a candidate’s personal information in compliance with applicable privacy laws, no general notification requirements cover background checks.
In the event that the background check will include a consumer or credit report, however, consumer reporting legislation may impose specific notification obligations on employers. For example, in Ontario, notice of a credit check must be “clearly set forth in bold type or underlined and in letters not less than 10-point in size.”
5. Understand the activities of your background checker. Because there would be an agency relationship between your company and a background check agency you retain, your company may be liable for any unlawful acts committed by your background checker, including actions constituting unlawful discrimination and breaches of privacy. Ensure that your background checker is aware of its legal obligations and has measures in place to minimize liability.
6. Always follow through. If you make an offer of employment conditional on a positive reference or background check, don’t allow the employee to start work until the results of all reference and background checks have been received and reviewed. In the event that you can’t wait for all of the results, consider inserting a clause into any employment offer or contract that gives you the ability to terminate the employee for cause in the event that the results of the background check aren’t satisfactory.
