Well-Litigated Background Check Dispute Sent Back to the B.C. OIPC

19 Sep

On September 6th, the British Columbia Supreme Court allowed a judicial review application of a finding that the British Columbia Ministry of Children and Family Development breached British Columbia FIPPA by failing to make every reasonable effort to ensure the accuracy of personal information before using it to answer an background check inquiry.

This is a very well-litigated dispute about a communication made by the Ministry to a social services employer who contacted the Ministry, with consent, to check into the background of a new employee. The Ministry disclosed the existence of a complaint made against the employee. It also noticed some irregularities in its file, did a full review of the file (without going behind the file to make inquires) and rendered an opinion to the employer that the employee needed to be supervised when in contact with children.

The employee was terminated and has since been on a long campaign to seek redress. In May 2010, the British Columbia Court of Appeal dismissed the employee’s $520 million action against the Ministry and others as disclosing no reasonable cause of action. About a year earlier, the Court of Appeal heard an appeal of the employee’s privacy complaint and sent it back to the B.C. OIPC so the OIPC could consider whether the Ministry breached section 28 of B.C. FIPPA. Section 28 imposes a duty to make every reasonable effort to ensure the accuracy of personal information that is used to make a decision that directly affects an individual.

In reconsideration, the OPIC affirmed the employee’s complaint. It held that the Ministry had made a “decision” that engaged the section 28 duty and held that the Ministry had failed to make every reasonable effort to ensure the accuracy of the employee’s personal information. The OIPC explained:

In this matter, the evidence is clear that the social worker made no effort, let alone every reasonable effort, to ensure the accuracy and completeness of the information she relied upon to come to her interim decision recommending Mr. Harrison not be left alone with youth in his workplace. Her opinion was based in part on her belief that the matter had not been “properly” investigated. Yet she did not make a single inquiry of any one of the several Ministry employees who had had dealings with Mr. Harrison over the previous decade. To compound matters, she admitted that, when she made her recommendation concerning Mr. Harrison, it had been more than twenty-four years since she had worked in the field of child protection. This decision, based on allegations determined at the time to be without substance and warranting no further investigation, has led to consequences that cannot be remedied. …

In addition, it is not clear to me whether the Ministry has a strategy, policy or process dealing with the management of files concerning unsubstantiated or worse, uninvestigated, allegations of sexual (or other) abuse. It is however clear that those who have been subjected to the latter are in an unenviable situation in which there can be no successful outcome. Since no investigation ever takes place, the veracity of the allegation is not conclusively resolved. Yet no further investigation will ever take place, frustrating closure to the matter and leading to the possible loss of reputation or other harm.

The Court held that the OIPC erred by rendering its decision without considering the public interest in disclosure about potential threats to children and the Ministry’s duty to protect children under the CFSCA. It referred the matter back to the OPIC for resolution.

Harrison v. British Columbia (Information and Privacy Commissioner), 2011 BCSC 1204 (CanLII).

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