Ontario court rejects mid-employment criminal record checks

Arbitrator found checks should only be made at hiring or if employee gets convicted, but appeal court says employees can refuse them any time
|employmentlawtoday.com|Last Updated: 08/19/2009

An Ontario court has denied the rights of the City of Ottawa to perform periodic criminal records checks on firefighters in the middle of their employment. It also questioned whether the city had the right to perform these kinds of checks at all.

In 2007, the city developed a policy to perform criminal record checks on its firefighters mid-employment. The firefighters’ union grieved the policy, saying the checks violated the firefighters’ privacy. Under the province’s Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), criminal records are protected, as opposed to individual convictions, which are available to the public. The union argued the only circumstances in which a firefighter or any other employee should be ordered to consent to a criminal records check would be when she is hired or where there are reasonable grounds, such as a criminal conviction that could affect the nature of the employment.

An arbitrator agreed with the union, finding mid-employment criminal records checks were a violation of privacy and should only be made when there are reasonable grounds.

The city appealed the arbitrator’s decision, but the Ontario Court of Justice upheld the ruling. In fact, the court didn’t stop at simply supporting the invalidation of mid-employment reference checks, but also questioned whether the city could require an employee to consent to the checks at all.

“I would be included to go even further than the arbitrator and would question, having regard to the (MFIPPA), whether the privacy rights of Ottawa firefighters referred to in the Act can ever, regardless of the circumstances, be taken away from them by the city by unilaterally establishing a policy requiring all firefighters to provide consent periodically or ‘where reasonable grounds justify it’,” the court said.

The court also found the necessity of obtaining this type of private information could only be justified on a case-by-case basis and therefore required individual consent each time, not consent from the union in a collective agreement. In any case, the court found employees should be allowed to refuse consent to a criminal records check in any circumstances.

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