As we know, background screenings of job candidates are standard operating procedures (‘SOP’) of any employer’s recruitment process, helping to identify the best-qualified candidates, while managing potential risks related to a poor hiring decision.
There are many background checks that are commonly permissible in Canada, and the type of checks an employer may consider running depend on the nature of the position for which the candidate is being considered. The most widely used are those that relate to the academic, employment, criminal, and credit history of candidates.
Employers are of course eager to learn as much about a candidate as is possible, however, they must tread most cautiously. An improperly conducted background check – or a properly conducted one where data obtained is improperly used or even disclosed – will expose an employer to liability. This liability may cost an employer an inordinate amount in terms of both cost and professional reputation for such carelessness.
It is therefore crucial, that any background check is conducted in accordance with applicable provincial laws. Federally regulated employers must guarantee compliance with federal law. Both privacy and human rights legislation, in relevance to provincial law, exists at the federal level as well.
Human rights legislation exists in each of the Canadian jurisdictions we are addressing, and to the extent that an employer obtaining information related to ‘protected grounds’, cannot consider this information to be a factor in the ultimate hiring decision.
What must be kept in mind here is that privacy statutes and obligations differ among Canadian provinces when it involves personal employee information. Both impose important and necessary limitations on background checking with respect to what checks are conducted, and how the information collected may be legally used.
Fortunately for us, Blake Cassels and Mondaq have kindly provided this handy interactive map revealing the notable features in each province regarding privacy and human rights as they relate to this article.
For your convenience, I have provided the notable features information for ‘British Columbia’ as follows:
An employer may, without a candidate’s consent, collect personal information, IF the collection is for the “purposes of establishing an employment relationship.” However, before doing so, the employer must notify the candidate. Human rights legislation prohibits an employer from refusing to hire a candidate on the grounds that he or she was convicted of a criminal or summary conviction offence if that offence is “unrelated” to the employment.