Background Checks and an Employee's Right to Privacy
Posted: 12.07.2015
An Article By: Earl Altman, Employment Law
It has become commonplace in many industries for employers to conduct reference checks, background checks, and security checks on new employees. Depending on the industry, these checks can be rather extensive. In some cases, the application for employment contains a provision whereby the applicant consents to the employer conducting such checks and reviewing the results. However, on higher level positions where there is no “application” there is a question as to whether such checks violate the employee’s right to privacy.
This issue was considered in a recent decision of the Ontario Superior Court. In this case, the employee sued the employer for violation of his right to privacy as a result of a credit bureau check performed by the employer without the employee’s consent. The employee’s claim was based on an alleged breach of his right to privacy. The employer brought a motion to the Court to have the Claim dismissed as disclosing no reasonable cause of action.
The Court first referred to the well settled principle that an action should not be dismissed at such an early stage unless it is “plain and obvious that the action could not possibly succeed”. The novelty of the nature of the action should not prevent the plaintiff from seeking to pursue his rights.
The Court then reviewed the state of the law in Ontario as to the right to privacy, and whether or not it was settled law in Ontario that there is no common law tort of invasion of privacy. The Court reviewed the various decided cases, and authorities in the area and arrived at the conclusion that, in fact, the possibility of a cause of action for the intentional tort for invasion of privacy had been accepted. While the Ontario Courts have not been unanimous in accepting that principle, it was sufficient for the purposes of this motion that the concept had not been rejected out of hand.
Having accepted that there was a possibility that such a tort existed, the Court then went on to consider how that right ought to be protected. It reviewed certain cases and reached the conclusion that, in fact, there is a right to privacy in the civil law context. The Court is required to balance the right of privacy of individuals against the state’s objective of promoting public safety. This balancing should come down on the side of the individual wherever possible.
The Court also referred to the advances in technology and the ease with which personal data can now be disseminated. As a result, society as a whole and the Courts in particular should have greater concern to protect an individual’s rights to privacy. As the Court stated, “…the time has come to recognize invasion of privacy as a tort in its own right”. The Court therefore refused to dismiss the claim as disclosing no cause of action.
The case serves as a warning to employers to exercise caution when conducting background checks and other checks of an employee’s qualifications. Particular advice should be obtained where the situation warrants. We will continue to monitor the development of the law in this area and keep our clients informed as the law evolves.
About the author: Earl Altman is a partner with the Toronto law firm of Garfinkle Biderman LLP. He can be reached at (416)869-1234 Ext. 280 or ealtman@garfinkle.com.
It has become commonplace in many industries for employers to conduct reference checks, background checks, and security checks on new employees. Depending on the industry, these checks can be rather extensive. In some cases, the application for employment contains a provision whereby the applicant consents to the employer conducting such checks and reviewing the results. However, on higher level positions where there is no “application” there is a question as to whether such checks violate the employee’s right to privacy.
This issue was considered in a recent decision of the Ontario Superior Court. In this case, the employee sued the employer for violation of his right to privacy as a result of a credit bureau check performed by the employer without the employee’s consent. The employee’s claim was based on an alleged breach of his right to privacy. The employer brought a motion to the Court to have the Claim dismissed as disclosing no reasonable cause of action.
The Court first referred to the well settled principle that an action should not be dismissed at such an early stage unless it is “plain and obvious that the action could not possibly succeed”. The novelty of the nature of the action should not prevent the plaintiff from seeking to pursue his rights.
The Court then reviewed the state of the law in Ontario as to the right to privacy, and whether or not it was settled law in Ontario that there is no common law tort of invasion of privacy. The Court reviewed the various decided cases, and authorities in the area and arrived at the conclusion that, in fact, the possibility of a cause of action for the intentional tort for invasion of privacy had been accepted. While the Ontario Courts have not been unanimous in accepting that principle, it was sufficient for the purposes of this motion that the concept had not been rejected out of hand.
Having accepted that there was a possibility that such a tort existed, the Court then went on to consider how that right ought to be protected. It reviewed certain cases and reached the conclusion that, in fact, there is a right to privacy in the civil law context. The Court is required to balance the right of privacy of individuals against the state’s objective of promoting public safety. This balancing should come down on the side of the individual wherever possible.
The Court also referred to the advances in technology and the ease with which personal data can now be disseminated. As a result, society as a whole and the Courts in particular should have greater concern to protect an individual’s rights to privacy. As the Court stated, “…the time has come to recognize invasion of privacy as a tort in its own right”. The Court therefore refused to dismiss the claim as disclosing no cause of action.
The case serves as a warning to employers to exercise caution when conducting background checks and other checks of an employee’s qualifications. Particular advice should be obtained where the situation warrants. We will continue to monitor the development of the law in this area and keep our clients informed as the law evolves.
About the author: Earl Altman is a partner with the Toronto law firm of Garfinkle Biderman LLP. He can be reached at (416)869-1234 Ext. 280 or ealtman@garfinkle.com.
