Criminal reference checks for current hospital employees ruled improper

In a decision from last May that just came to my attention, Arbitrator Stout ruled that a hospital’s policy that required all current employees to undertake vulnerable sector criminal record checks violated its nurses collective agreement. 

Although British Columbia legislation supports periodic checks on vulnerable sector employees, the hospital’s policy was first of its kind in the Ontario hospital sector. Ontario employer’s have had difficulty justifying such checks. Arbitrator Picher’s comment about the distinction between pre-employment and in-employment checks in City of Ottawa is both authoritative and restrictive. 

The person who presents himself or herself at the door of a business or other institution to be hired does so as a stranger. At that point the employer knows little or nothing about the person who is no more than a job applicant. In my view, the same cannot be said of an individual who has, for a significant period of time, been an employee under the supervision of management. The employment relationship presupposes a degree of ongoing, and arguably increasing, familiarity with the qualities and personality of the individual employee. The employer, through its managers and supervisors, is not without reasonable means to make an ongoing assessment of the fitness of the individual for continued employment, including such factors as his or her moral rectitude, to the extent that it can be determined from job performance, relationships with supervisors and other employees, and such other information as may incidentally come to the attention of the employer through the normal social exchanges that are common to most workplaces. On the whole, therefore, the extraordinary waiver of privacy which may be justified when a stranger is hired is substantially less compelling as applied to an employee with many months, or indeed many years, of service.

Mr. Picher did state that in-employment checks can be used for employees exercising “particularly sensitive functions.” 

In this case, Arbitrator Stout held that the employer had not proven a “current problem” or “real risk.” Arbitrator Stout was also significantly influenced by the structural problem with vulnerable sector checks – i.e. they return sensitive “non-conviction information” for which employers generally have no need.

Rouge Valley Health System v Ontario Nurses’ Association, 2015 CanLII 24422 (ON LA).

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

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).

SCOTUS background check case is very… American

Today, the Supreme Court of the United States unanimously decided that elements of a background check administered to contractors working at a NASA laboratory are constitutionally permissible.

The contractors challenged a question that asks whether individuals have “used, possessed, supplied or manufactured illegal drugs” in the last year and a question to those answering “yes” about “treatment or counseling received.” They also objected to the breadth of inquiries routinely made to references, including questions that sought facts potentially related to “honesty or trustworthiness,” “financial integrity,” “abuse of alcohol and/or other drugs,” and “mental or emotional stability.”

Justice Alito wrote the majority opinion. He assumes, without deciding, that a right to “informational privacy” exists under the United States Constitution but holds that, in any event, the background check questions at issue are justifiable on a contextual balancing of interests. He stresses that government, when acting as employer, has a much “freer hand” to deal with individuals, stresses the pervasiveness of similar screening questions in the private sector and stresses that the information collected is well-protected by the federal Privacy Act.

Justice Scalia, with Justice Thomas concurring, wrote a concurring opinion in which he holds there is no constitutional right to “informational privacy.” He mocks the contractors for their failure to rely on a single provision of the Constitution in written argument and criticizes the majority for its “damaging” “never-say-never” position.

Justice Scalia’s display of sharp wit is well worth a read, but as Canadian employment law practitioner, the following statement by Justice Alito is even more remarkable:

Like any employer, the Government is entitled to have its projects staffed by reliable, law-abiding persons who will“‘efficiently and effectively’” discharge their duties. See Engquist, supra, at 598–599. Questions about illegal-drug use are a useful way of figuring out which persons have these characteristics. See, e.g., Breen & Matusitz, An Updated Examination of the Effects of Illegal Drug Use in the Workplace, 19 J. Human Behavior in the Social Environment, 434 (2009) (illicit drug use negatively correlated with workplace productivity).

This shows such different values than currently reflected in our own screening law. In particular, Canadian adjudicators have expressed great discomfort with the suggestion that individuals who casually use illegal drugs outside the workplace will be less efficient, effective or reliable while at work. Justice Alito (and his six esteemed colleagues) draw the link between illegal drug use simpliciter and workplace performance so easily that it makes you wonder whether we are missing something.

NASA v. Nelson, 562 U.S. ____ (2011).

Key issues in workplace privacy presentation

I spent most of the day today at the Canadian Institute’s Meeting Your Privacy Obligations conference. It was a very good show, and I managed to catch great presentations by Frank Work, Robin Gould-Soil (of TD Financial Group) and David Fraser. I did a “hot issues” style presentation on workplace privacy. Two thirds of the content is refined from the slides I posted yesterday, but there’s an additional part on background checks. Notes are in the slides over at Slideshare.

Case Report – BCCA dismisses background check action

On May 5th, the British Columbia Court of Appeal dismissed a $520 million action against the province and a Ministry of Children and Family Development employee for alleged improprieties in answering a background check made by a funded agency.

The Court held that the lower court should have disposed of the action under British Columbia’s summary trial rule. It held that the Ministry employee was not in sufficient proximity to the plaintiff given her conflicting statutory duty to children and family members. It also held there was no evidence of malice to support a misfeasance in public office claim and to negate a qualified privilege defence to a defamation claim.

Last May the Court ordered a British Columbia FIPPA complaint arising out of the same facts back to the Information and Privacy Commissioner of British Columbia to address whether the Ministry breached the accuracy provision of the Act. (Summary here.) It appears that the OPIC has not yet issued a finding.

Harrison v. British Columbia (Children and Family Development), 2010 BCCA 220.

Case Report – Ont. C.A. allows criminal records check appeal about disclosure of withdrawn charges

Yesterday, the Ontario Court of Appeal held that a police service lawfully disclosed information about an individual’s withdrawn criminal charges in the course of administering background checks.

The applicant, a social services worker, was charged with four counts of sexual assault and four counts of sexual exploitation. At trial, the charges were withdrawn and the applicant entered a peace bond. The applicant was later denied a license for a group home, denied employment and terminated from employment, assumingly based on information provided after conducting a vulnerable persons search. In response, he brought a successful application for an order to have information about the withdrawn charges expunged from police records.

The Court of Appeal held that the applications judge erred to the extent that he found that the applicant did not give specific consent to the disclosure of the withdrawn charges. The Court held that consent to disclose this information could be inferred in the circumstances even though the written consent form did not expressly refer to withdrawn charges. This essential finding is illustrative but fact-based. More broadly, however, the Court also found that the consent was not invalid because it was coercive. It said the following about the fairness of background checks:

The fact that a person effectively must consent to a Vulnerable Persons Search in order to apply for certain types of jobs may be perceived as coercive and, in that way, possibly unfair. In regards to this alleged coercion, the affidavit evidence in this case indicates that these searches are necessary in order to give prospective employers involved with vulnerable persons all potentially relevant information about potential employees, within the bounds of the permissible disclosure of personal information under MFIPPA. Also, in a case where withdrawn charges which were false are disclosed, the potential employee has the ability to explain the circumstances to the proposed employer.

The Court also rejected arguments that the disclosure breached the applicant’s rights under sections 7 and 8 of the Charter.

This highlights the vulnerability of individuals in Ontario who are charged of criminal offences but not convicted given the recent finding by the Human Rights Tribunal of Ontario that the “record of offences” protected ground does not protect persons only charged with offences. See de Pelham v. Mytrak Health Systems, 2009 HRTO 172 (CanLII). [Addendum: A contact has told me the complainant in de Pelham has stated his intent to file an application for judicial review.]

Tadros v. Peel (Police Service), 2009 ONCA 442.

Case Report – Breadth of disclosure in criminal background checks unlawful

On October 5th, the Ontario Superior Court of Justice held that a police service unlawfully disclosed information about an individual’s withdrawn criminal charges in the course of conducting background checks.

The applicant, a social services worker, was charged with four counts of sexual assault and four counts of sexual exploitation. At trial, the charges were withdrawn and the applicant entered a peace bond. The applicant was later denied a license for a group home, denied employment and terminated from employment, assumingly based on information provided in criminal background checks. In response, he brought an application seeking an order to have information about the withdrawn charges expunged from police records.

The Court held that the police were authorized to collect and retain information about withdrawn charges and rejected the applicant’s (potentially disruptive) argument that retention of the records violated various Charter provisions. It did, however, hold that the applicant had not given his informed consent to disclosure. There was a dispute about whether the applicant actually signed any consents, but the Court held that the police service’s standard consent form was nonetheless insufficient to support disclosure of information about the withdrawn charges:

In this application, none of the relevant pieces of legislation were attacked and people unfamiliar with the legislation might be forgiven for being surprised at the breadth of information police services are authorized to maintain. I conclude, however, that the maintaining of information that charges have been laid, albeit subsequently withdrawn, is not in any way prohibited by legislation. On the other hand, I see nothing in any legislation which authorizes the release of information reporting that the subject of the inquiry was charged with sexual offences, which were subsequently withdrawn. The release form, which may or may not have been signed by Mr. Tadros, is not sufficiently specific in its terms to encompass this particular eventuality, and Mr. Tadros could be excused for assuming that at the time the application was made for the information, he had no record of any sort and need not be concerned about any adverse effect which might result on his employment prospects. There is a basic unfairness in the dissemination of this type of information as evidenced by the apparent effect it did have on his employment chances.

The breadth of information provided in Ontario criminal background checks has been the subject of significant criticism. For information on the policy-related significance of this judgement see “Criminal Background Checks – Balancing Public Safety, Security and Privacy” by John Swaigen.

Tadros v. Peel Regional Police Service, 2007 CanLII 41902 (ON S.C.).