‘It’s an abject failure’

It was just over a month ago when Ottawa announced the appointment of Birju Dattani as chief commissioner of the Canadian Human Rights Commission (CHRC).

The appointment came at a “pivotal time,” said the government, citing its commitment to protecting human rights and fighting racism, and Dattani “brings a wealth of both professional and personal lived experience to this role.”

Dattani has “dedicated his career to protecting and upholding the rights of Canadians,” said the government release, and has “established himself as an expert in human rights law and as a champion for equity, diversity and inclusion.”

But it didn’t take long before calls for his resignation rang out, after allegations that Dattani made controversial social media posts. According to the Centre for Israel and Jewish Affairs (CIJA), Dattani shared articles that “compared Israel to Nazi Germany” under the name "Mujahid Dattani,” according to a CBC report.

They claimed that social media posts and comments made by Dattani “reveal a troubling past of anti-Israel and even antisemitic positions”.

Subsequently, the Privy Council Office (PCO) admitted to “an administrative oversight [that] resulted in the aliases not being searched by PCO,” said a spokesperson, and now, "a formal, independent review" has been launched into the matter with a public report to be published before Aug. 8, says the CBC, when Dattani is supposed to assume his new role.

Government ‘negligence’ in not doing ‘deep dive’

“If the allegations are true, it's an abject failure on the part of the local government and, in fact, negligence, quite frankly, in terms of not doing a proper deep dive on social media — it's an absolute must these days,” says John Hyde, partner and chair of the management-side labour group, at Hyde HR Law in Toronto.

So says John Hyde, partner and chair of the management-side labour group, at Hyde HR Law in Toronto.

“He allegedly made improper and anti-semitic statements, under a pseudonym, but on the other side of that, he's also participated in a number of conferences that should have been caught.”

The chief commissioner is a key and fundamental role, says Hyde, and the nature of a leader will impact the direction of the Commission.

“I'm extremely worried, as a labour and employment lawyer that appears regularly for the tribunal in matters dealing with the Commission, [about] the position taken by the Commission… It's not just about him being unbiased, but it's the perception of bias that undermines any decision the Commission makes.”

Had the PCO taken a deeper look at Dattani on social media, there wouldn't have been this “absolute failure” in the hiring process, says Hyde.

“You always have to do a deep dive on social media, it's so important these days, because… almost everyone's on it. And I think it gives you a good opportunity to see the underlying basis for any applicant... what kind of person is this person?”

Privacy considerations with social media checks

There are various types of background checks available to employers, but the most common are usually employment history, education and criminal checks, says  Lyndsay Wasser, partner, privacy & data protection, employment & labour relations at McMillan in Toronto.

Credit checks are less common and considered quite invasive, while motor vehicle checks are only required if someone is operating a vehicle.

Social media checks are a bit of a special case, because an employer can go online and do checks without an employment candidate necessarily knowing that's happening, she says.

But the privacy laws still apply, says Wasser, and for Dattani, it’s a public sector job so the federal Privacy Act would apply, which does include employee information.

And while there is an exemption for publicly available information, meaning restrictions on certain uses and disclosures of information, “it doesn't actually apply for collection of information,” she says.

“So, there is a requirement to generally have consent to collect information about an individual from a third party instead of the individual themselves. That would potentially apply to collecting information about a job candidate, including from social media, because that publicly available exemption isn't directly applicable to collecting information.”

We can’t really make the blanket statement that consent is not needed to look at social media, says Wasser.

“The question is: Is it reasonable and relevant to the job? When you're looking at a position such as this one, of public importance, an argument can be made that that is relevant.”

However, the office of the Privacy Commissioner of Canada, which oversees compliance with the federal privacy act, has published guidance on privacy and social media in the workplace, with implications for staffing and recruitment, she says.

“What it does say is that employers... should be aware of the fact that information on social media can be inaccurate or distorted, or out of date. And so employers should be cautious about relying on that.”

And that's a generally good rule across the country, says Wasser.

“If you do conduct a social media search, and you find something concerning or potentially problematic, at the very least, the job candidate should have an opportunity to respond to what you found.”

Privacy considerations with background screening

Overall, when you collect personal information, it should be reasonably necessary in the circumstances, she says. So the type of checks conducted should take into account the position and whether the type of background check is relevant to that position

As for whether consent is required, that depends on the jurisdiction, along with the type of check and why it’s required, says Wasser. And when it comes to employee or job applicant privacy, “there's a bit of a patchwork of legislation across the country.”

Some provinces, like Ontario, don't have their own legislation though the courts do recognize torts around privacy; in Alberta, B.C. and Quebec, however, there is provincial legislation and PIPEDA legislation (Personal Information Protection and Electronic Documents Act) which also applies for federally regulated employers.

That means consent is required “to collect personal information for reasonable purposes related to establishing the employment relationship, but you do have to provide notice that you're going to do that and the purposes for which the information is going to be collected,” she says.

While there may be exemptions from the consent requirements, employers must obtain information from various third parties such as former employers, the government or police who are unlikely — or unable if privacy legislation applies to them — to provide information if the employer can't prove an individual consented, says Wasser.

“From a practical perspective, you should obtain consent, because that'll facilitate you being able to complete the check. And it’ll also... comply with your obligations across the country even where it may not be strictly required.”

Discrimination allegations in background checks

When it comes to social media checks, another big consideration for employers is human rights violations. This would entail discrimination on the grounds of race, ancestry, place of origin, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status and disability.

“Once an employer collects this information through social media, they expose themselves to the allegation that it was used improperly,” says Wasser.

“It is one of the risks of doing social media searches, as you can collect or see a lot of information that would be protected by a human rights legislation. And if you then decide not to hire a person, they may say, ‘Well, you did that, because you knew I was X.’”

And if an employer does face a discrimination charge, they have to prove there was no discrimination — versus the employee proving there was discrimination, says Hyde.

“It's almost like a reverse onus, if you will... and the reason for that is it's the employer that has all the information with regard to the decision-making process, all the facts — not the employee alleging discrimination,” he says.

“It’s not the information that kills you, it's improperly acting on the information.”

Is facial recognition software a good idea?

One issue in the Dattani appointment was his use of “aliases” or different names. But does that mean employers should be using facial recognition software to make sure they gain a full picture of someone online?

That kind of tech has its limitations and arguably could be a breach of privacy, says Hyde.

“I don't think I'd necessarily want to do that without permission. There's no reason not to ask for that permission if you believe that is necessary for the assessment.”

But that kind of approach is not usually required or even supported, says Wasser.

“Biometrics in particular is highly sensitive information… you would certainly want legal advice in the jurisdiction where you operate before going down that road.”

Quebec, for example, has very specific and strict rules around biometrics, she says.

“In general, the privacy regulators have issued quite a lot of caution around how sensitive biometric information is.”

In looking at the reasonableness or necessity to collect information, says Wasser, there's generally a four-part test that's applied that looks at: whether there’s a legitimate need; whether the check is an effective way to collect the information; whether the check is proportionate to the benefit of the organization and to the impact on privacy; and whether there's a less invasive means to achieve your goals.

“I would say that, in most cases, biometric scanning of online sources is going to be fairly invasive,” she says. “I think you'd have a lot of difficulty justifying that.”

Employee termination after misrepresentation

Despite the calls for his resignation, it remains to be seen whether Dattani will be stepping down as chief commissioner of the CHRC.

But employers do have options if they find out a person misrepresented themselves during the hiring process.

“That goes to the root of the contract,” says Hyde. “It's very much like situations where someone falsifies a resume and the employer properly takes the position that they have after-acquired cause to terminate. Because they ended up hiring the person on the basis of those falsehoods.”

In looking at a for-cause termination, it’s about asking: Does it go to the root of the employment relationship?

“There are certain duties employees have to employers, duties of good faith, things like that are so very important in the nature of the employment relationship,” he says.

“The key to remember here is that each case has to be considered on its own set of facts. There's no hard-and fast rules, and there has to be a reasonableness to the assessments.”

If there's a misrepresentation, you may say that is cause for termination, says Wasser, “but it would have to be material misrepresentation that would impact the employment relationship and would have impacted whether you would have hired the person, so if there was an intentional misrepresentation.”

And to establish cause, an employer should give the employee an opportunity to explain and consider specific circumstances, she says.

“If you didn't ask, and they didn't tell, you're not likely to have cause for termination — unless for some reason it damages the employment relationship beyond repair.”

However, if employer makes a conditional offer of employment that was conditional upon satisfactory background checks, and then found out in the course of those background checks that there was a legitimate reason not to employ the individual, then it may be able to revoke the offer of employment, says Wasser.

“But if you didn't run a background check and later found out that you didn't care for the person's history, it would likely be difficult to allege cause — but you may be able to terminate without cause.”