Earlier this week, I posted an update about the coming into force of the Ontario Police Record Checks Reform Act.

With increasing frequency, Canadian employers are conducting criminal records checks on job applicants. There are numerous reasons why employers conduct this type of screening. In some cases, it is legislatively required because the job involves interacting with vulnerable persons or there are special security clearances. In other cases, the employer is trying to mitigate the possibility of being liable for the actions of their employees if the criminal behaviour is repeated and customers or co-workers are injured or suffer a loss.

Increasingly, outsourcing contracts will contain a requirement to conduct criminal records checks on employees and subcontractors. It is very important when negotiating contractual requirements to conduct criminal records checks that there may be different laws that apply depending on whether the service provider has its workforce. For example, a Canadian bank may deny employment to a person because of a criminal conviction for which the individual has not been pardoned. The bank is subject to the Canadian Human Rights Act. However, that does not necessarily mean that the bank can impose that requirement on a service provider in British Columbia that is regulated by provincial legislation that says that the employer cannot deny employment if the conviction is unrelated to the intended employment. The mere fact that a customer insists on the criminal record check does not mean that the employer can discriminate. The bank would have to show that it is subject to a law and the outsourced service provider would need to be able to defend that the conviction was related to the individual’s intended employment.

So, when negotiating outsourcing arrangements, it is important for the parties to understand that there is considerable variation across the country with respect to how criminal convictions are treated under human rights legislation. It is important for the parties to work together to define what types of checks should be done and what will happen when there is an adverse finding.

Here is a quick cheat sheet on the variations across Canada. However, be sure to seek qualified legal advice in your province or territory. Also, a quick shout out that the Canadian Civil Liberties Association has resource material that is written in plain language. Check out the CCLA resources at: https://ccla.org/recordchecks/resources/

Categories: Cloud Computing, Criminal Law, Privacy

Tags: Background Checks, Canada, Outsourcing