Law Times

Law Times • March 2, 2015 Page 11 www.lawtimesnews.com Pan Am Games to include extensive background check on applicants BY SHANNON KARI Law Times he tens of thousands of people who are seeking to volunteer at the Pan American Games this summer in Toronto will have to undergo an extensive police back- ground check regardless of their actual role at the sporting event. All volunteer applicants, whether selected or not, will have their personal information added to the RCMP's Protec- tion of Persons of National and International Importance data- bank and stored for a minimum of two years. Officials will use multiple po- lice databases in the screening and the searches won't simply look for past criminal convictions. The screening, using sophisticated records management software, could potentially access and then store details about any past inter- action with authorities and even mental-health information. More than 50,000 people have already applied to be volunteers at the Pan Am Games, according to the organizing committee, and it's likely one of the most extensive background check operations ever conducted in Ontario. The screening for the Games also highlights an ongoing issue for employers and volunteer or- ganizations along with potential employees and individuals who want to offer their time to a group. Abby Deshman, a lawyer and director of the public safety pro- gram at the Canadian Civil Lib- erties Association, says there are instances when police checks are acceptable, such as when some- one is working with vulnerable people. But she adds it's important to ask additional questions about broad background screening. "Do you actually need this informa- tion? Is it providing a false sense of security?" asks Deshman, who helped produce a 2012 report is- sued by the CCLA about the use of non-conviction information as part of police background checks. She adds that in its research on these checks, the CCLA couldn't find any example of a court later finding an employer liable for the tort of negligent hiring for failing to conduct a background check on a job applicant. Another concern for the CCLA is the lack of precision around the terminology. Back- ground checks have no precise definition and potential employ- ees and volunteers should "read the fine print," says Deshman. "Who will have access to it? What will they do with it?" she asks. The information for potential volunteers at the Pan Am Games is in fine print on page 4 of a 10- page privacy policy. Applicants must provide per- sonal information that includes gender, date and place of birth, nationality, citizenship, and other details that will be available to the provincial Ministry of the Com- munity Safety and Correctional Services as well as the RCMP. Security at the Games is the responsibility of the integrated security unit led by the Ontario Provincial Police, which has del- egated the background checks to the RCMP. Games officials have confirmed that every ap- plicant will undergo screening with their information added to the databank. RCMP documents say the da- tabank is to accumulate personal information on people who "will be in close proximity to visiting national or international dignitar- ies" or in a "secure" zone. A spokesman for TO2015, the organizing committee for the Games, directed questions to police about why every vol- unteer applicant will face this background screening. The integrated security unit says the information collected will be destroyed after two years, although the rules that govern the databank leave it in the hands of the RCMP to decide what to do with the data. Officials cited security reasons in refusing a request by Law Times for the names of the police databases used in the background checks. Bruce O'Neill, a senior com- munications co-ordinator for the integrated security unit, says the checks are "standard" for major events. "The ISU is tasked with se- curing the Games. Accreditation is the bedrock of this security," he wrote in an e-mail response. The provincial Office of the Information and Privacy Commissioner says it recently contacted organizers for the Games when it became aware of the screening process. "We have reached out to TO2015 to discuss the scope and potential privacy implications of the ac- creditation process," says a state- ment issued on behalf of privacy commissioner Brian Beamish. While the Pan Am Games may be a higher-profile and bigger example of background checks in the volunteer sector, the lack of detail about exactly what infor- mation will be part of the searches isn't uncommon, says Michael Crystal, an Ottawa lawyer who fo- cuses on privacy-related litigation. "Police forces in Ontario are very inconsistent about the type of information that they will release [to a potential employer or volun- teer organization]," says Crystal. "You are potentially play- ing fast and loose with people's reputations," he adds. Expunging past information from the databases, even non- conviction information, "is al- most impossible," says Crystal. An alternative is to go out and have a background check conducted be- fore applying for a specific job or seeking to volunteer. "That way, you can put the information in context for an employer," he says. The Ontario Human Rights Code prohibits discrimination against a potential employee on the basis of a prior criminal conviction if the person has ob- tained a pardon. However, there have been a number of past rul- ings that found the protections don't extend to people charged but not convicted of an offence. "The definition of record of offences is clear and unambigu- ous and provides that 'record of offences' covers only persons convicted of an offence and not charged with an offence," ex- plained a Human Rights Tribu- nal adjudicator in der von Felix v. International Financial Data Services Canada. Human rights protections for non-conviction information "is very limited in Ontario," says Deshman. She adds that even paying for a background check in advance of a job application may not always be effective. "You may not have access to the level of check that the employer does. A government employer, for ex- ample, will have direct address to wider databases," says Deshman. On the employer side, the need to conduct background checks of new hires is in part a result of increasing statutory obligations, says Michael Fitzgibbon of Water- shed LLP in Oakville, Ont. "Employers are faced with all sorts of responsibilities," includ- ing provisions in the Occupa- tional Health and Safety Act to ensure a safe workplace, notes Fitzgibbon. Along with these responsibili- ties, "you are trying to gather in- formation to make the best hire you can," he adds. Background checks are one method to do that, although he urges caution when using other types of searches such as going online to look at Face- book pages or any social media. "It could be dangerous for employers. Once you have the information, it is hard to forget it," says Fitzgibbon. If the online information is unreliable or the employer uses it to unfairly ex- clude a candidate, "your hiring decision may be tainted," he says. If a formal background check is necessary, it's "critically im- portant that employers spell out very clearly exactly what is being checked," says Fitzgibbon. Best practices would also al- low for the potential employee or volunteer to respond to any questionable information that arises, he suggests. LT dismissed," wrote Winny. He also dismissed an argument that a lack of any hours on the sched- ule was a form of progressive discipline even though Bray was unaware of this allegation until the litigation had begun. Pamela Krauss, who repre- sented Bray, says the case is the first time a client has proven damages in excess of $25,000 at the Small Claims Court. "It has an important symbolic value," says Krauss, a lawyer at Mor- rison Reist in Kitchener, Ont. As well, it's part of the record if there's an appeal of the decision, she adds. There have been an in- creasing number of wrongful dismissal actions at the Small Claims Court since the limit in- creased to $25,000 and Krauss says it may be a more appropri- ate venue for such cases even if the potential damages might be slightly higher. "There is less risk for the client in terms of costs," says Krauss. It also requires lawyers to be more efficient since it's generally not possible to book more than one day of court time for an action. The Human Rights Tribunal of Ontario is also an option for in- dividuals who feel their dismissal is a result of discrimination. Punitive damages aren't avail- able in that forum, notes Krauss, nor does it award costs. LT FOCUS T Continued from page 10 Case has 'symbolic value' Abby Deshman has long had concerns about employer background checks. CANADIAN LAW LIST 2015 KEEPING PACE WITH THE CHANGING LEGAL COMMUNITY FOR OVER 130 YEARS This is more than a phone book. It is your instant connection to Canada's legal network. 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