Pre-Employment Screening Tips

Michael Fitzgibbon and Kate A. Zavitz for The Lawyers Weekly

September 11, 2009

Many employers conduct pre-employment screening of candidates in order to better assess their qualifications and suitability for the position for which they have applied. While this has obvious benefits for employers, pre-employment screening that includes a criminal background check can raise issues relating to human rights and consent.

In Ontario, the Human Rights Code prohibits discrimination in employment against an employee (or applicant) because he or she has a criminal conviction for which a pardon has not been granted. Other human rights legislation is silent on the issue or is restrictive on the uses that can be made of information relative to criminal convictions.

Two recent decisions of the Court of Appeal and the Ontario Human Rights Tribunal have narrowed the definition of the term "record of offences" and provide guidance on what information about an employee's (or candidate's) criminal history constitutes discrimination under the Code. A recent decision of the Divisional Court also clarifies the importance of obtaining the free and informed consent of employees and candidates before proceeding to obtain information about their criminal record of offences.

"Record of offences" protections

In de Pelham v. Mytrak Health Systems Inc., the applicant, de Pelham, alleged that he had been discriminated against contrary to the Code on the basis of his "record of offences," which included having been charged with, but not convicted of, a criminal offence.

The tribunal declined to broaden the definition of "record of offences" to include situations where an individual has been charged with a criminal offence. It concluded that the definition did not include any official record of interaction with the law, including a record of criminal accusations. It held that the Code was "clear and unambiguous" and provided that "record of offences" only covered persons convicted of an offence.

While the Code had to be given a "large, liberal and purposive interpretation," the tribunal recognized that it could not depart from the express provision of the legislation.

Withdrawn charges

In Tadros v. Peel Regional Police Service, the Court of Appeal set aside an injunction against the police prohibiting it from making any reference to withdrawn criminal charges of sexual assault and sexual exploitation when responding to any inquiries made to it by any organization or individual about Tadros, the respondent.

Tadros had provided his consent to a police records check and a vulnerable persons search. The information about the withdrawn charges was somehow released to agencies to which Tadros had applied. Tadros believed that the police department's release of information about withdrawn charges led to his being terminated from employment and the subsequent difficulty he encountered in obtaining offers of employment.

The Court of Appeal rejected the argument that the collection and disclosure of withdrawn criminal charges violated the Municipal Freedom of Information and Protection of Privacy Act and the Police Services Act. Tadros had given his consent and thus authorized the police to undertake the criminal record check in question.

Employee consent

In City of Ottawa v. Ottawa Professional Firefighters Association, Justice Matlow considered an application by the employer, the City of Ottawa, to review an arbitration award. The arbitrator considered whether the city's policy to require all firefighters to provide their consent for access to their criminal records once every three years was a proper exercise of the city's management rights under the applicable collective agreement with the respondent trade union. The arbitrator declared that the policy was of no effect.

The Divisional Court declined to interfere with the arbitrator's conclusion that the "blanket consent" obtained by the city was in excess of the management rights provision under the terms of the applicable collective agreement. The arbitrator further concluded that there was no evidence to support the city's argument that a firefighter's responsibilities warranted criminal record information to be provided mid-employment.

Although it cautioned that its comments were made informally and had not been argued by the parties, the Divisional Court stated that a blanket consent of all employees obtained by application of a company policy, even if the company had the right to establish such a policy, would have been insufficient. An employee's consent must be "free and informed consent given by the individual [employee] and not merely one that he or she has been obliged... to provide."

Neither the arbitration nor the application for judicial review challenged the city's policy as a precondition of being hired. The arbitrator, however, mentioned that there was a significant distinction between the point of initial hire and the normal course of business: considerations may apply to a candidate that do not apply to employees who have been employed and observed by an employer for a period of time.

Pre-employment screening

There are a number of take-aways that can be gleaned from these recent decisions:

-          Prospective employees continue to have certain protections relating to "records of offences" under the Code, but such protections are not unlimited and do not extend to withdrawn, pending or unpardoned criminal charges;

-          Background checks on prospective employees continue to offer significant benefits to employers. Such checks should include reference, criminal and possibly credit checks;

-          Background checks are not only an important means of assessing a candidate's suitability, but they can minimize the risk of a wrongful hiring claim and may protect the company and employees from workplace risks.

-          Employers should develop and consistently follow internal background check processes, including obtaining the appropriate consents. Having a policy and not applying it consistently will not assist an employer in the event that it is challenged in future proceedings.

Michael Fitzgibbon and Kate A. Zavitz are lawyers in the Labour and Employment Group of Borden Ladner Gervais LLP, working in the firm's Toronto office. Contact Michael Fitzgibbon today.

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