Mid-employment criminal record checks

Question: In order to comply with our Customs-Trade Partnership Against Terrorism (C-TPAT) membership, we are supposed to conduct criminal record checks for all employees responsible for shipping goods to and from the United States. When is it permissable to conduct “mid-employment” criminal record checks and not violate Canadian privacy legislation?

Answer: The federal privacy legislation (PIPEDA) applies to the collection, use, retention and disclosure of “personal information” about individuals by federally regulated employers. Ontario hasn’t enacted privacy legislation of general application, and PIPEDA does not extend to provincially regulated private sector employers. As a result, for provincially regulated private sector employers in Ontario, employees’ privacy interests are protected by a mix of common law and contractual provisions.

If an employer is substantially involved in extra-provincial and international transportation, it would be federally regulated according to s. 92(10) of the Constitution Act, 1867, and would be regulated by PIPEDA. According to s. 5(1) of PIPEDA, an organization that wishes to collect, use or disclose personal information must identify the purpose of the collection, use or disclosure and must obtain the individual’s consent. Section 5(3) of PIPEDA provides that “an organization may collect, use or disclose personal information only for those purposes that a reasonable person would consider are appropriate in the circumstances.” Section 5(3) imports an objective element and “ensures that an individual’s consent cannot cure a decision to collect that is unreasonable.”

In Turner v. Telus Communications Inc., the Privacy Commissioner of Canada found that “in considering the appropriateness of making a privacy-invasive measure a job requirement, the purposes for introducing the measure must be looked at in the context of the reasonable person test outlined in s. 5(3) of PIPEDA.” In other words, would a reasonable person consider it appropriate for the employer to conduct mid-employment criminal record checks in the circumstances? The purpose of PIPEDA is “to balance the individual’s right to privacy with respect to their personal information and the need of organizations to collect, use, or disclose personal information for appropriate purposes in the circumstances.”

The loss of privacy must always be weighed against the benefits, and the purposes for the measure must be grounded in a defensible need. A reasonable person would likely consider the employer’s purposes in these circumstances to be appropriate. The employer has to conduct mid-employment criminal record checks to comply with C-TPAT membership requirements, and the nature of the employer’s business (international transportation of goods) requires ongoing record checks for security reasons. An employee who was hired without any criminal records could be charged and convicted while working with the employer. Before proceeding, employers should inform their employees of the mid-employment criminal record checks in the employment agreement, and establish appropriate safeguards to protect the information.

Criminal record checks can be analogized to drug testing in the workplace. The general principles from Canadian Human Rights cases are that an employer has “the right to ensure that its business operations are conducted safely. This right generally outweighs an employee’s privacy right in cases where an employee is hired to work in a safety sensitive position.” In Canadian Pacific Ltd. v. U.T.U., the arbitrator held that the employer has “a right to require an employee to undergo drug tests when the employer is a public carrier and the employee’s duties are inherently safety sensitive.”

For more information see:

•Turner v. Telus Communications Inc., 2005 CarswellNat 3954 (F.C.).
•Canadian Pacific Ltd. v. U.T.U., (May 17, 1996), Doc. 2725 (Can. R.O.A.).