When employing and screening in Canada, there are a few key things you must consider when reviewing your background check process. When implementing or evaluating your background check program, be sure to take the following six requirements into consideration.
1. Informed Consent
It is important that the employer seeks upfront candidate consent to disclosure of personal information and the purpose for it, prior to undergoing checks in Canada.
Criminal information, such as from the Royal Canadian Mounted Police (RCMP), is not allowed to be released about an individual without the full, informed, and voluntary consent of the candidate. The Canadian Civil Liberties Association suggests that consent forms are detailed enough so that the individual knows exactly what kind of check will be run and why. The Personal Information Protection and Electronic Documents Act (PIPEDA) mandates that an employer can use or disclose people’s personal information only for the purpose for which they gave consent, and if that purpose changes, a new consent must be collected. Similarly to the Canadian Civil Liberties Association, PIPEDA and the Canadian Standards Association's Model Code for the Protection of Personal Information state that the individual should be informed of the purposes for the collection, use or disclosure of personal data. The candidate must be given enough time and space to comprehend the forms and provide truly voluntary consent.
2. Candidate Disclosure
Employers in Canada may give candidates the opportunity to declare any criminal convictions or offenses for which they have not been granted a pardon. This can be done via an upfront consent form and then verified with fingerprint records later on in the process, as required. Once the candidate discloses any criminal offenses, that information will be confirmed as a part of a nationwide CPIC search.
3. Appropriateness to the Position
In Canada, an employer must relate the background check to the position for which they are hiring. What kind of searches, checks and verifications are needed for the position being filled? For example, you might want to add media checks and credit checks with credit bureaus for directors - or - professional reference – or professional license for Accountants, Legal or Medical professionals.
Under PIPEDA, the purpose and need for a background check shall be identified at or before the time the information is collected; then the collection of that information must be limited to only that information which supports the purpose. In addition, the employer should consider when it is best to conduct the background check, and generally speaking, it is often determined best practice to conduct a background check later in the hiring process such as when they are near making an offer or even after they have extended a conditional offer of employment.
4. Dispute Process
An individual should be able to challenge the accuracy and completeness of the information and have it amended as appropriate. If the organization refuses to correct its records, the individual may require it to attach a statement of disagreement to the file; this statement then must be provided to any other organizations that have access to the information. In the event the individual is unsatisfied with the organization’s handling of the disputed information, they may file a complaint with the Office of the Privacy Commissioner of Canada. The Commissioner is required to investigate the complaint and to produce a report at its conclusion. The complainant, with the report in hand, can then take the matter to the Federal Court of Canada to request a civil hearing with respect to the subject matter of the complaint. The Court has the power to order the organization to correct its practices, to publicize the steps it will take to correct its practices, and to award damages.
5. Data Privacy
Employers must review and comply with the Personal Information Protection and Electronic Documents Act (PIPEDA), as well as the Privacy Act.
The Privacy Act covers the personal information-handling practices in the public sector (federal government). As this relates to background screening, personal information under the control of a government institution may not be disclosed without the individual’s consent.
PIPEDA is Canada’s private sector privacy law. It sets ground rules for how private sector organizations collect, use, and disclose personal information for commercial activities. Note: Although PIPEDA is limited within provinces to only federal works, undertakings or businesses (WFUB’s include banks, telecommunications, transportation and pipeline companies), PIPEDA also applies to any commercial activity that involves inter-provincial or international data or personal information transfer.
Employers also need to take note that there are other laws related to background screening that may not be directly related to privacy laws, such as consumer reporting and human rights laws.
6. Province of Hire
Depending on province of hiring, please also consider and consult MFIPPA, PIPA and any province specific Human Rights, Freedom Acts, Data Privacy or Credit Consumer Reporting acts that must be adhered to.
Some provinces have enacted their own legislation which is similar to PIPEDA. British Columbia and Alberta each has its own version called PIPA, and Quebec has a version called the Quebec Private Sector Act. The remaining provinces and territories have not enacted legislation comparable to PIPEDA and therefore privacy laws fall to PIPEDA rules for non-provincially-regulated organizations. PIPEDA also applies when collection, use, or disclosure of information by private-sector organizations crosses provincial or national borders.
There are a few similarities, as well as a few differences, in how to run background checks in the United States versus running background checks in Canada. If you keep these considerations in mind while implementing a background screening program, it should get you on the right track for a compliant and comprehensive process.
*The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.