Michael Ford (post until Oct. 31/19)
Employment & Labour

Background check reforms make employers' lives easier

A new law limiting what can be turned over in police background checks will make employers’ lives easier, Toronto employment lawyer Deborah Howden tells AdvocateDaily.com.

The Police Record Checks Reform Act passed without opposition at Queen’s Park all the way back in 2015, but only goes into force this November, when it will alter what police can tell organizations who request background checks for prospective employees and volunteers.

According to the Toronto Star, the legislation was prompted by its investigation into the plight of individuals denied the ability to work or travel due to the disclosure of “non-conviction records,” which include details of police interactions related to unproven allegations and mental health issues.   

Howden, a partner with Shibley Righton LLP's Toronto office, says the old rules tended to put employers in a difficult position because of the sheer volume of information they received.

“Virtually any contact with police could be brought to the attention of employers, meaning that they would have access to information that they had no idea what to do with,” she says.

The Star investigation reported on a nursing student forced to abandon his plans to enter the profession due to his presence at the comic book store where he worked two decades earlier when it was raided on suspicion of selling obscene material. The police contact remained on his record even after the charges were thrown out by a judge.

Another woman told the paper her personal life and social working career were ruined due to 16-year-old allegations of assault made by her teenaged daughter following an argument, despite the fact they never led to a conviction.

Howden says details of police apprehensions under the Mental Health Act posed particular problems for employers because of the protections afforded to Ontarians under the province’s Human Rights Code, which prohibits discrimination on the basis of disability.

“Much of the information employers received had to be disregarded. They were unable to legally rely on it,” Howden explains.   

“What I like about this legislation is that it makes it very clear what kind of information will not be turned over to prospective employers,” she adds.

The new law bars disclosure of mental health records, and anything related to charges that did not result in a conviction, except in certain limited circumstances, and divides requests into three broad categories: criminal record checks, criminal record and judicial matters checks, and vulnerable sector checks.

The more extensive vulnerable sector check, which kicks in for individuals in a potential position of trust or authority over children, disabled adults or other vulnerable people, allows non-conviction materials to be turned over, but only if police are satisfied it is necessary following an in-depth review of the circumstances of the request.

“The good thing about this is that it protects candidates who may have a disability or who for privacy reasons would not want employers to know about contacts with police that didn’t result in a conviction,” Howden says. “But at the same time, it allows broader disclosure where appropriate.”

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