Employer Guide: How to Create a Background Check Policy in Canada

Why Background Check Policies Matter

A well-designed background check policy protects your organization while treating candidates fairly. Without a clear policy, you risk:

• Inconsistent screening that leads to discrimination claims
• Liability for negligent hiring
• Violations of privacy and human rights legislation
• Lost talent due to overly restrictive practices

This guide will help you create a policy that balances these considerations.

Legal Framework in Canada

Privacy Legislation

Background checks must comply with:

Federal Legislation:

• Personal Information Protection and Electronic Documents Act (PIPEDA)
• Applies to federally regulated industries and interprovincial commerce

Provincial Legislation:

• Alberta: Personal Information Protection Act (PIPA)
• British Columbia: Personal Information Protection Act (PIPA)
• Quebec: Act Respecting the Protection of Personal Information in the Private Sector

Key Requirements:

• Written consent before conducting any background check
• Collection limited to information necessary for the purpose
• Reasonable security safeguards for personal information
• Providing individuals access to information collected about them

Human Rights Legislation

Every Canadian province has human rights legislation that affects background check practices:

Protected Grounds:

You cannot discriminate based on:

• Criminal conviction for which a record suspension has been granted
• Criminal charges that did not result in conviction
• Unrelated criminal history (in most provinces)

The Bona Fide Occupational Requirement Test:

Criminal record screening is permitted when there is a genuine connection between the requirement and job duties. For example:

• Financial positions may legitimately screen for fraud convictions
• Positions working with children may require vulnerable sector checks
• Driving positions may legitimately screen driving records

Ontario Human Rights Code - Special Provisions

Ontario specifically protects people from discrimination based on "record of offences." This means:

• You cannot ask about arrests that did not lead to conviction
• You cannot ask about charges currently before the courts
• You cannot reject candidates solely because they have a criminal record
• You must consider whether the record is relevant to the job

Building Your Policy

Step 1: Determine Which Positions Require Screening

Not every position needs a background check. Consider:

Higher Risk Positions:

• Positions with financial authority or access
• Positions working with vulnerable populations
• Positions with access to sensitive information
• Positions requiring security clearance
• Positions involving driving

Lower Risk Positions:

• Entry-level positions with supervision
• Positions without access to sensitive areas
• Positions without financial responsibility

Document Your Rationale:

For each position requiring screening, document why. This helps defend against discrimination claims.

Step 2: Define What Checks Are Required

Different positions may require different checks:

Criminal Record Check (Basic)

• Searches CPIC for criminal convictions
• Appropriate for most positions requiring screening

Vulnerable Sector Check

• Includes search for pardoned sexual offences
• Required for positions working with vulnerable populations

Reference Checks

• Verify employment history and performance
• Appropriate for most positions

Education Verification

• Confirm degrees and certifications
• Required for positions where education is essential

Credit Check

• Review credit history
• Appropriate only for positions with significant financial responsibility

Driver Abstract

• Review driving record
• Required for positions involving driving

Step 3: Establish an Assessment Process

Criminal records should be assessed individually, not through blanket policies. Consider:

The Three-Factor Test:

1. **Nature of the offence** - What did the person do?
2. **Relevance to the position** - Does it relate to job duties?
3. **Time elapsed** - How long ago did it occur?

Additional Factors:

• Circumstances of the offence
• Evidence of rehabilitation
• Number and pattern of offences
• Age at time of offence
• Character references

Documentation:

Document your assessment process and the factors considered in each decision. This protects against discrimination claims.

Step 4: Create Consent and Disclosure Forms

Your consent form should:

• Clearly explain what checks will be conducted
• Identify who will conduct the checks
• Explain how information will be used
• Describe how information will be protected
• Provide space for the candidate to disclose relevant information
• Be signed before any checks are conducted

Step 5: Establish a Review Process

Create a process for candidates to:

• Review the results of their background check
• Dispute inaccurate information
• Provide context or explanation for findings
• Request reconsideration of adverse decisions

Sample Policy Structure

1. Purpose Statement

Explain why your organization conducts background checks and the goals of the policy.

2. Scope

Specify which positions require screening and what types of checks apply.

3. Types of Background Checks

Define each type of check your organization conducts and when it applies.

4. Consent Requirements

Outline the consent process and what candidates must acknowledge.

5. Assessment Criteria

Describe how criminal records and other findings will be assessed.

6. Adverse Action Process

Explain what happens when screening reveals concerning information.

7. Confidentiality

Describe how background check information is protected and who has access.

8. Record Retention

Specify how long background check information is retained.

9. Compliance

Reference applicable legislation and commitment to non-discrimination.

Best Practices

Do

• Get written consent before every check
• Screen consistently within position categories
• Consider relevance, recency, and rehabilitation
• Give candidates a chance to explain findings
• Train hiring managers on proper assessment
• Document all decisions and rationale
• Review your policy annually

Do Not

• Use blanket policies rejecting all candidates with records
• Ask about arrests or withdrawn charges
• Consider pardoned records (except vulnerable sector)
• Share background check results unnecessarily
• Make decisions based on irrelevant convictions
• Conduct checks after making unconditional job offers

Training Hiring Managers

Hiring managers should understand:

• Legal requirements and prohibited grounds
• When background checks are appropriate
• How to assess criminal records fairly
• What questions they can and cannot ask
• How to document decisions
• When to consult HR or legal counsel

Responding to Background Check Findings

When a background check reveals concerning information:

1. Notify the Candidate

Before taking any adverse action, inform the candidate of the findings and give them an opportunity to respond.

2. Allow Time to Respond

Give the candidate reasonable time (typically 5-10 business days) to:

• Dispute inaccurate information
• Provide context or explanation
• Submit evidence of rehabilitation

3. Conduct Individual Assessment

Apply the three-factor test and document your analysis.

4. Make a Decision

Based on your assessment, determine whether to:

• Proceed with hiring
• Decline to hire (with documented reasons)
• Offer an alternative position

5. Communicate the Decision

If you decide not to hire, communicate this clearly to the candidate. You do not need to provide detailed reasons, but be honest about the decision.

Frequently Asked Questions

Can we require background checks for all employees?

You can require checks if you can demonstrate a legitimate business reason. However, blanket requirements for all positions may be challenged if checks are not relevant to certain roles.

What if a candidate refuses consent?

You may decline to proceed with the application, but the candidate is within their rights to refuse. Document the refusal and your decision.

How long should we keep background check records?

Retain records only as long as necessary. Most organizations keep records for the duration of employment plus a reasonable period (typically 1-3 years) after.

Can we withdraw a job offer based on background check results?

Yes, if the offer was conditional on passing the background check and the findings are job-relevant. Be prepared to document your decision-making process.

What about social media screening?

Social media screening raises significant privacy and human rights concerns. If you choose to include it, focus only on job-relevant information and be consistent in application.

Conclusion

A well-designed background check policy protects your organization while treating candidates fairly. Focus on:

• Job relevance
• Individual assessment
• Consistent application
• Proper documentation
• Legal compliance

Review your policy regularly and train all hiring stakeholders on proper implementation.