April 5, 2016
ALERT
CLIENT
LABOUR AND EMPLOYMENT
2.
In an increasingly competitive business environment, it is perhaps
more important than ever for employers to exercise prudence and
caution in hiring and maintaining their workforce. Background checks,
including criminal record, credit history, driving record and resume/
reference confirmation, have become important parts of the hiring
process. Background checks can be made by the employer directly or
by a specialized consultant.
Police Record Checks
New Legislation Governing Police Record Checks
On December 1, 2015, the Ontario government passed Bill 113 the
Police Record Checks Reform Act, 2015 (the “Act”). While not yet in force,
the new Act will have significant implications in the way in which
criminal record checks will be conducted and the information that will
be available to employers.
Criminal Record and Judicial Matters Check
If more information than what is permitted under the Criminal
Record Check is required, the employer may request a Criminal
Record and Judicial Matters Check.
This type of record check
allows for slightly more disclosure. The Act permits the disclosure
of not only every criminal offence to which the individual has
been convicted and for which a pardon has not been granted
and every finding of guilt under the Youth Criminal Justice Act
(Canada), but also of any court orders made against the individual
and criminal offences for which a charge or warrant for arrest is
outstanding. The disclosure of any criminal offence for which
the individual has been charged that resulted in a finding of not
criminally responsible on account of mental disorder is, however,
prohibited.
LABOUR AND EMPLOYMENT CRIMINAL BACKGROUND CHECKS
by W.
Eric Kay and Andrew J. Skinner
Depending upon the nature of a company’s business, police record
checks would be appropriate, if not essential. An incident involving
an employee with a prior criminal background, where a check was
not completed, could very well have been avoided, including the
inconvenience and training cost of an inappropriate hire.
In addition, if
the incident becomes known to a client/customer or the public, it could
damage client/customer trust and be damaging to the reputation of
the business.
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3.
Vulnerable Sector Checks
Vulnerable sector checks, which are carried out where an
individual is in a position of trust or authority over vulnerable
persons, like children or the elderly, permit the most disclosure.
In addition to the disclosure permitted under a criminal record
and judicial matters check, the Act extends the permitted
disclosure under a vulnerable sector check to include charges
where the individual was found not criminally responsible on
account of mental disorder. The Act allows for the disclosure of
other non-conviction information in exceptional circumstances
where the criteria for “exceptional disclosure”, as prescribed by
subsection 10(2) of the Act, is satisfied. Such criteria include the
nature of the incident, when the incident occurred, and whether
the incident involved a vulnerable person.
The Act is Ontario’s first comprehensive set of standards governing
how police record checks are to be conducted in Ontario.
It governs
the type of information that can be disclosed to employers by police in
response to record check inquiries, as well as how that information may
be used and disclosed by employers. It is intended to remove barriers
to employment, education and volunteer activities. Most significantly,
in most cases, the Act prohibits the disclosure of non-conviction and
non-criminal records.
Review and Consent Protocol
The Act creates and authorizes three types of police record checks: (a)
criminal record checks; (b) criminal record and judicial matters checks;
and (c) vulnerable sector checks, each of which can be requested in
writing by an employer in accordance with section 7 of the Act.
The new legislation will limit the information that an organization will
receive in response to a police record check.
Employers will only obtain
information from police record checks where an individual consents to
such disclosure. Importantly, employers that willfully contravene the
Act will be guilty of an offence and liable to a fine of not more than
$5,000.
1.
Criminal Record Checks
In response to a request for a criminal record check, the Act
permits the disclosure of every criminal offence of which the
individual has been convicted and for which a pardon has
not been granted and every finding of guilt under the Youth
Criminal Justice Act (Canada). The Act prohibits the disclosure
of any court orders made against the individual or a criminal
offence for which there is an outstanding charge or warrant
for arrest.
Section 12 of the Act now requires that the individual to whom the
requested information pertains have an opportunity to review the
information and then consent to its disclosure.
If the individual
believes that non-conviction information is inappropriately included
in any of the above record checks, he/she may request reconsideration
of the disclosure under section 10(4) of the Act.
Ontario Human Rights Code
The Ontario Human Rights Code (“Code”) has provided certain
protections for individuals in the employment context and remains
relevant in the context of police record checks. The Code provides
that a person cannot be discriminated against on certain prohibited
grounds including “record of offences”, which is defined as convictions
for an offence in respect of a Provincial enactment or for a Criminal
. April 5, 2016
CLIENT
Code offence for which a pardon has been granted. Employers should
note that disclosure of the latter is prohibited under the new Act. In
accordance with the Code, an employer cannot make a hiring decision
or an employment decision affected by a “record of offences”. Like
the other prohibited grounds of discrimination, employers must be
careful not to be seen to rely on a prohibited ground of discrimination
with regard to information obtained through background checks
or through the interview process.
The adverse consequences of
“contravening” the Code can be significant financially and potentially
in terms of reputation.
Mechanics of a Criminal Background Check
Employers should be aware that criminal background checks could
take up to several months to complete. Where more than one person
is identified with the same name and birth date, fingerprinting may
be required in order to obtain results. The details of the process are
readily available with employment related agencies that specialize in
administering the background check process for employers and can, in
some circumstances, expedite the process.
Best Practices
The best time to request a criminal background check on an employee
is during the hiring process.
As a best practice, employers should
request consent to conduct a police record check prior to hire and
make an acceptable result a pre-condition of employment.
Conclusion
It is important for companies to have a considered and comprehensive
policy on background checks. Organizations must take care to
understand the provisions under the new Act, update their policies on
criminal record checks in particular and background checks in general
to adapt to the new requirements, and current customary practice
and to retrain staff responsible for conducting background checks,
including criminal record checks.
This Client Alert is published by Dickinson Wright LLP to inform our clients and
friends of important developments in the field of labour and employment
law . The content is informational only and does not constitute legal or
professional advice.
We encourage you to consult a Dickinson Wright lawyer
if you have specific questions or concerns relating to any of the topics covered
in here.
FOR MORE INFORMATION CONTACT:
W. Eric Kay is a partner in Dickinson Wright’s Toronto
Office and can be reached at 416.777.4011 or ekay@
dickinsonwright.com
Andrew J. Skinner is a partner in Dickinson Wright’s
Toronto Office and can be reached at 416.777.4033 or
askinner@dickinsonwright.com
ALERT
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