How to Conduct Background Checks in Canada

Posted: October 29, 2020

According to the Office of the United States Trade Representative, in 2018, the U.S. traded around $718.5 billion in goods and services with Canada with $363.8 billion in exports and $354.7 billion in imports. Since Canada is the United States’ third-largest supplier, many U.S. companies have offices there and need to hire Canadian candidates, so it is essential to conduct background checks efficiently and legally.

Important Considerations for Background Checks in Canada

There are numerous legal and cultural nuances to consider prior to conducting background checks in Canada. First off, the country is divided into ten provinces and three territories, including Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland, Labrador, Nova Scotia, Nunavut, Ontario, Prince Edward Island, Quebec, Saskatchewan, and Yukon. The process of conducting background checks within these provinces and territories can vary greatly with the overall process, information obtained, languages spoken, privacy regulations, human rights laws, etc.

Many U.S. employers incorrectly assume that background check laws in Canada and the United States are similar since they are neighboring countries and the majority of people speak English. However, this line of thinking is a significant risk to U.S. employers since Canadian background check laws are quite different from American laws. For example, Canadian laws emphasize the principle of minimum data collection when collecting a candidate’s personal information during the application process, which means the application process for a candidate in British Columbia is different than it is for a candidate in Quebec.

There are many important considerations for conducting background checks in Canada, including:

• Minimum data collection: Canadian privacy laws emphasize the principle of minimum data collection. If you don’t need a driver’s license number to conduct your criminal search, don’t collect it in your form. Many U.S. employers use a standard, “universal” form or ATS system to collect all of the “possible” information in order to conduct background checks for different positions, but this is not good practice in Canada.
• Meaningful Consent – Employers conducting background checks in Canada are required to obtain a consent form for services prior to beginning the process. Getting a candidate’s consent is an essential piece of Canadian privacy law. Additionally, when conducting background checks, companies must be upfront with candidates about the information that is being collected about them, who their personal information is being shared with, for what purpose their personal information is being collected for, and the risk of harm or consequences to them from someone obtaining the information.
• Identification – For criminal background checks through the Canadian Police Information Center (CPIC), the applicant must sign a special release form and provide two acceptable forms of ID, one that is a government-issued piece of identification that includes the applicant’s name, date of birth, signature and photo.
• Social Insurance Number (SIN) – In most cases, the Social Insurance Number (SIN), a nine-digit number that is used for income reporting purposes in Canada, is not required for background screening and in most cases, should not be collected during the process unless there is a legislated purpose.
• General Obligations – Employers must adhere to two general obligations when conducting background checks in Canada. The first obligation is based on the “reasonableness” standard, meaning that the collection and use of a candidate’s personal information must be considered reasonable. The second obligation is that the applicant must consent to the collection, use, and disclosure of any information about him or her. In summary, when conducting background checks in Canada, a company must be acting reasonably with consent, which may be harder than it sounds.

Types of Canadian Background Checks

The most common type of background checks in Canada are criminal records checks, driving records checks, credit report checks, education verifications, employment verifications, professional reference verifications and Global Monitor Checks. Additionally, there are many other products that are available for background checks in Canada. Below are the detailed descriptions of each product used to make hiring decisions.

• Criminal Records Checks – There are two different kinds of criminal records checks in Canada – one is a national search and the other is a local provincial search. There are pros and cons to both types of searches, and it may be necessary to get legal advice prior to settling on one:
  
  National search: the “Canadian Police Information Center (CPIC) Investigative Database” is a national search called CPIC. It is conducted through a national database that is managed by the Royal Canadian Mounted Police (RCMP) containing fingerprint-based records with indictable and hybrid offenses. An indictable offense is considered a more serious charge such as assault, manslaughter, kidnapping and theft over $5,000. Hybrid offenses (sometimes called a “Crown option” or “dual procedure”) are offenses tried either summarily or by an indictment.
  
  Provincial search: the second type criminal record check in Canada is called a local provincial search. A provincial search is a local court search based on the applicant’s residence history that returns any summary and indictable offenses found in the province being searched and will include more details than the CPIC search such as date of offense, charge type, disposition, and sentencing information. Canadian criminal records checks can uncover following offenses: Summary Conviction Offenses, Indictable Offenses, Hybrid Offenses, Absolute and Conditional Discharges, Prohibited Persons Information, Record Suspensions (formerly known as Pardons) and Youth Criminal Justice Act. It is important to note that these offenses are usually found at the provincial level.

• Educational Verification
  Educational verifications in Canada examine post-secondary student records via schools’ registrar offices, databases, or guidance counselors. An educational verification confirms the dates of attendance, course of study, graduation, degree obtained, GPA, major, etc.  There is usually a 3-5-day turnaround time for Educational Verifications in Canada.
  
• Employment Verification
  An employment verification in Canada confirms a candidate’s employment history by contacting companies’ Human Resource and payroll departments. Common information verified during an employment verification in Canada includes start and end date, reason for leaving, salary, and if the candidate is eligible for rehire. It is standard practice not to verify an applicant’s current employment.
• Professional Organizations Membership Verification
  It is somewhat common in Canada is to verify a candidate’s stated membership in professional organizations, which is usually accomplished by contacting the membership departments of organizations.

• References
  Professional and personal reference checks in Canada verify the references provided by the applicant, although this practice seems to be declining since some companies have policies against providing references due to litigation resources. However, some Canadian companies do require character references.

• Motor Vehicle/Driver Record Checks
  The Motor Vehicle/Driver Record Abstract Checks search pulls records from driver’s license offices to see if there are claims against the license. A Driver License Verification validates a candidate’s license number with the results of “valid’ or “not found.” Each province determines administration of driver records checks.

• Commercial Vehicle Operator Registration Check
  This search, which comes from the Provincial Licensing Authority, tracks on-road safety for larger vehicles.

• Credit Checks
  The individual credit report conducted in Canada includes insolvency, bankruptcy information and bad payment history. While credit checks are available in Canada, they are generally only used when required by an industry.

• Drug Screening
  Info Cubic offers international drug testing solutions by working with top rated SAMHSA (Substance Abuse and Mental Health Services Administration) labs and certified collection sites in Canada. Employers are strongly encouraged to engage with qualified local legal counsel before implementing a drug testing policy. The Canadian Human Rights Commission has published a policy document on the issue noting that if there is “no demonstrable relationship to job safety and performance”, drug testing may violate an employee’s human rights.

• Directorship CheckThis search to determines if a candidate had fiduciary or board of directors’ responsibilities for a company.

• Global Monitor Check (GMC)
  Global Monitor Check (GMC) is a database product that searches a variety of databases.

• ID Check
  A validation and/or verification of the data subject’s identity documents.

• Bankruptcy Records Search
  The bankruptcy search is conducted at the local level through the court based on the jurisdiction of the address provided. Report may include file date, case number, name of court where case was filed and case status if a bankruptcy case can be located.

Canadian Privacy Laws

Canadian privacy laws are fundamentally different than privacy laws in the United States. Employers in the States must understand the laws that may impact background screening, including data privacy laws and human rights legislation on both the federal and provincial levels in Canada. The country has very strict privacy legislation that encompasses everything about the handling of personal information.

Privacy Commissioners in Canada have powerful rights of investigation to enforce Canadian privacy laws. The Federal Court of Canada has also ruled that Canadian privacy laws extend beyond the borders and must be followed by any organization dealing with the personal information of Canadians.

Protection and Electronic Documents Act (PIPEDA)

Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) is legislation on the federal level, governing organizations involved in commercial activities, specifically as to personal data being transferred across provincial borders or internationally. PIPEDA is the controlling data privacy law as it pertains to international and interprovincial transfers. When data is being transferred within the province itself, the provincial privacy law (if one exists) will control instead of PIPEDA. There are numerous data privacy regulations for Background Checks in Canada that fall under PIPEDA, which is the controlling data privacy law pertaining to international and interprovincial transfers. However, when data is transferred within the province itself, the provincial privacy law (if one exists) will control instead of PIPEDA. Here are a few considerations relating to PIPEDA:

1. Under PIPEDA, “personal data” is defined broadly to include “information about an identifiable individual” that excludes certain information such as the name or title of an employee of an organization.
2. The ten principles under PIPEDA requires organizations to limit collection of personal information to only that which is necessary, to ensure data is accurate, complete, and up-to-date and to protect personal data with appropriate security safeguards. PIPEDA has ten fair information principles that organizations must adhere to when dealing with personal information to provide individuals with a level of privacy protection. The ten fair information principles are: Accountability, Consent, Limiting Collection, Limiting Use, Disclosure, and Retention, Accuracy, Safeguards, Openness, Individual Access, Challenging Compliance.
3. On the provincial level, provinces may adopt privacy laws provided they are deemed “substantially similar” to PIPEDA. Currently, only Quebec, Alberta and British Columbia have separate privacy legislation that impacts the private sector. In 2013, Manitoba passed its data privacy legislation, but the law has not been proclaimed which means it is not currently in effect.

Human Rights Legislation in Canada

When conducting background checks in Canada, employers should be aware of human rights legislation, especially when using criminal history information to make decisions regarding employment. The Canadian Human Rights Act, which applies to industries that are federally regulated, prohibits discrimination based on “race, national or ethnic origin, color, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”

The Federal Canadian Human Rights Act applies to federally regulated industries, otherwise the human rights law in the province or territory applies. Although provincial human rights laws protect largely the same groups, a criminal conviction for which a pardon has been granted is not always included as a protected class. Alberta and New Brunswick for example do not make any mention of criminal history or convictions. On the other hand, several provinces, such as British Columbia, Newfoundland and Labrador, Quebec and the Northwest Territories do prohibit discrimination based on the fact that an individual has been convicted of an offense that is unrelated to the position being filled. In these provinces is it especially critical for employers to avoid blanket disqualification polices by ensuring that criminal history is considered with a direct relationship to the position requirements and the job applicant.

Language Considerations for Background Checks in Canada

One challenge in conducing Canadian background checks is the language differentiation since approximately 86% of Canadians speak English and 27% of Canadians speak French. In particular, the Province of Quebec presents challenges to employers due to its strict language requirements. Under the “Charter of the French Language,” French is the official language of Quebec. As a predominantly French-speaking province, Quebec passed and actively enforces the Charter to preserve and ensure the long-term viability of the French language, especially given the rising influence of English dominated transactions. Employment applications and other related materials must be provided in French. Quebec prohibits employers from “terminating, refusing to hire or failing to promote an individual based solely on the fact that he or she is French speaking.”

In conclusion, conducting background checks in Canada can be very cumbersome since it has numerous privacy and human rights laws, and a diverse geographic makeup. It is always advisable to hire an expert if you have concerns about adhering to a country’s regulations while conducting accurate background checks.