1. BACKGROUND CHECKS: THE LEGALITY
OF REFERENCE, CREDIT, CRIMINAL AND
QUALIFICATION CHECKS
Tamara Hunter
Head of the Privacy Law Compliance Group
Vancouver, BC

2. Types of Checks
• prior employment
• educational/professional
• criminal record
• police information
• credit
• internet/social media
• court records
• full background

3. Employment/Educational/Professional
• Generally, the least problematic and can be addressed by
appropriate wording on application documents
• “off-resume” contacts or “gaps” in work history (address case
by case with employee and/or through application form
wording)

4. Criminal/Police
• Criminal Record Checks – involve search of CPIC database
for prior criminal convictions, penalties or outstanding
charges
• Police Information Searches – involve search of local police
databases, such as PRIME, for “adverse police contact”
(investigations with no charges, charges with no convictions)

5. Police Information Checks
• BC Privacy Commissioner has said these are very privacy-
invasive and are “seldom justifiable”
• Not done by Government of BC even for designated
positions involving law enforcement or custody/control of
significant assets

6. Criminal Record Checks
• Required by statute for individuals working or volunteering
with children or vulnerable adults
• Privacy Commissioners (and labour arbitrators) have said
consistently that blanket criminal record check requirements
for all employees are not justifiable under privacy legislation

7. Criminal Record Checks
• Appropriate for certain positions involving access to or
responsibility for valuable assets, sensitive information,
information management systems
• Positions involving trust (e.g. senior executives, financial
management)
• Responsibility for statutory audits/investigations
• Positions involving administration of justice /law enforcement

8. Investigation Report F12-03 BC OIPC
• Found 85 % of BC Government’s 33,500 employees required
criminal record check (too many!)
• Found 6 out of 10 “designated positions” reasonable, 4 were
too vague/broad

9. Investigation Report F12-03 BC OIPC
• Positions involving “access to personal information” too
broad
• Other security measures available – e.g. restricted access to
personal information
• Positions involving audits/investigations required only by
policy and not by statute – too broad

10. Vancouver (City) v. Vancouver Firefighter’s Union Local 18
2010 CanLII 81705
• Some “designated positions” not reasonable for criminal
record checks
• Mere contact with vulnerable people insufficient – must have
on-going or significant relationship with vulnerable people or
have unsupervised access to vulnerable people

11. Human Rights Legislation
• Must also consider whether a conviction is “relevant” to an
employment position
• Employer cannot refuse to employ (or to continue to employ)
someone because of conviction that is unrelated to their
employment
• Must be assessed case by case (nature of offence, nature of
position, age of conviction, rehabilitation)

12. Timing of Criminal Record Checks
• BC OIPC: should only be done after employer has made a
conditional offer of employment (no earlier)
• On-going criminal record checks of existing employees (e.g.
every 5 years) – should be the exception, rather than the
norm

13. Timing of Criminal Record Checks
• On-going checks may be appropriate where highly sensitive
services/security involved (e.g. handling or transporting
substantial assets or highly sensitive information)
• Not necessary when employee transferred to new position
with substantially similar risk factors

14. Ottawa (City) v. Ottawa Professional Firefighters Assn.
[2009] O.J. No. 2914 (S.C.J.)
• “The person who presents himself or herself at the door of a
business or other institution to be hired does so as a
stranger….the same cannot be said of an individual who has,
for a significant period of time, been an employee under the
supervision of management.”

15. Credit Checks
• Again, not justified for all employees, depends on the
position
• Alberta OIPC Investigation Report P2010-IR-001
• Mark’s Work Wearhouse not justified in requiring applicant
for sales associate to undergo credit check, as the position
was closely monitored
• Similar finding re: receptionist in 2005-IR-008

16. Government of Alberta v. Alberta Union of Provincial
Employees (Arbitration Award, April 2012)
• Damages of $1250 per grievor awarded against Alberta
Government for unjustified credit checks done in the course
of a fraud investigation
• Officer in MEP’s special investigation unit used ability to
directly access Equifax database to access credit reports on
26 employees to see if any in financial difficulty
• It was later determined fraud was responsibility of parties
outside MEP

17. Internet/Social Media
• Requiring applicants to provide pass codes for social media
– condemned by several privacy commissioners
• Accessing public areas of social media, blogs, etc.
• Some commissioners have deterred, but Alberta Court of
Appeal has recently questioned validity of overly broad
definition of “personal information” in Alberta PIPA

18. United Food and Commercial Workers v. Alberta
(Information and Privacy Commissioner) 2012 ABCA 130
• “people can reasonably be held accountable for what they do
or do not do in public”
• Case related to videotaping of picket line and publication of
same by union, but Court’s comments may have broader
impact

19. Full Background Check
• Checking out an employee’s former landlords, neighbours,
etc. in addition to credit check, police information check,
court records, internet/social media
• Rarely justified, possibly for CSIS or high diplomatic
positions!

20. Won’t we get sued if we don’t do all these checks?
• USA – employers found liable for “negligent hiring”
• BC OIPC: this concern is not supported by Canadian case
law – no such tort in Canada
• Unlikely to be liable in Canada if following
arbitrator/commissioner findings and if other personnel
practices reasonable (e.g. reference checks done,
appropriate oversight and supervision)

21. Thank you for attending today's session.
Tamara L. Hunter
Davis LLP
Barristers & Solicitors
Suite 2800, 666 Burrard Street
Vancouver, BC V6C 2Z7
Phone: 604.643.2952
Fax: 604.605.3712
Email: tamara_hunter@davis.ca