Mid-employment criminal record checks

Can an employer go back and run checks on existing employees?
By Stuart Rudner
|Canadian Employment Law Today|Last Updated: 10/03/2012

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.”