Employers will be getting less information in criminal record checks under new regulations

Mar 4, 2016

Does your organization perform criminal record checks on potential employees and volunteers? If so, Ontario Bill 113 may affect your hiring practices.

Often these criminal record checks are used to ensure that potential hires are honest and trustworthy. Typically, employers are performing criminal record checks for positons where the employee will have access to large sums of money, high security clearance or will be working with vulnerable people such as children and seniors.

Over the past few years, many issues have been raised in regards to the information that was being released in these record reports. There was no standardized procedure of what information would be released by police agencies across the province. Often employers were receiving a variety of non-conviction information including documentation of mental health issues, suicide attempts, complaints where no actual chargers were laid, charges where acquittals were received, etc. Basically, a lot of private information about individuals was being released that had nothing to do with criminal convictions. The release of this information was creating barriers for individuals seeking employment, volunteer and education opportunities.

Bill 113 –  Police Record Checks Reform Act, 2015 

Bill 113, which received Royal Assent on December 3, 2015 (but is not yet in effect), will standardize the information that is released by police agencies across the province. It establishes 3 categories of criminal record checks:

  • Criminal Record Checks;
  • Criminal Record and Judicial matters checks; and
  • Vulnerable sector checks

Non-conviction information will not be disclosed in criminal record checks. However, non-conviction information may be released in a vulnerable sector check if it meets specific criteria outlined in the Act. If a pardon has been granted, a conviction will not be disclosed regardless of the category.

The Act also stipulates that the individual must first receive the results of the records check and the records check will only be provided to the organization requesting the records after the individual has seen the results and provided written consent to release them. The individual has the right to request reconsideration after receiving the report if he/she disputes the information contained in the report.

Lessons to be Learned:

  1. Employers will no longer receive information related to mental health.
  2. The record check process will likely take longer given that the individual must approve the release after reviewing the result.
  3. If an individual requests reconsideration, the process could be delayed further, which may affect start dates.

If you have any questions about criminal record checks for employees, please contact us at 647-204-8107 or by email at [email protected]

There are many ways to attack the termination clause in an employment contract. 

I am now surprised if employee counsel does not claim that their client’s  termination clause is not legally enforceable - usually because the termination clause does not allegedly comply with the Employment Standards Act.

This blog considers a case, McKercher v Stantec Architecture Ltd., 2019 SKQB 100, where an employee successfully attacked the termination clause in his contract because he did not explicitly agree to it after being promoted. 

The Facts

In 2006, Mr. McKercher commenced employment as a staff architect. The termination clause in his employment contract stated: 

Termination other than for cause will be with notice or pay in lieu of notice, based on your length of service. If the Employer terminates your employment for other than just cause you will receive the greater of:

  1. a)   Two weeks notice or pay in lieu of notice during the first two years of employment increasing by one week for each additional completed year of employment to a maximum of three months notice or pay in lieu of notice.

      or

  1. b)   The minimum notice of termination (or pay in lieu of notice) required by applicable statutes.

Eleven years later, when Mr. McKercher was employed as a Business Centre Sector Leader, his employment was terminated. The employer paid him the three months termination pay he was owed under his employment contract.

 

Another way to attack a termination clause: What is the changed substratum doctrine?

An Ontario judge in a 2012 case, MacGregor v National Home Services, 2012 ONSC 2042 (CanLII), described this legal doctrine as follows: "The changed substratum doctrine … provides that if an employee enters into an employment contract that specifies the notice period for a dismissal, the contractual notice period is not enforceable if over the course of employment, the important terms of the agreement concerning the employee’s responsibilities and status has significantly changed."

 

The rationale for this doctrine has been described by one judge, Schmidt v AMEC Earth & Environmental Ltd., 2004 BSCS 2012 (CanLII), as follows: "In my view, it was incumbent on the defendants to advise Mr. Schmidt that they intended to continue to rely upon the termination provision set out in the Agreement when substantial changes in his employment occurred. This would have allowed him to consider the matter and to negotiate for other terms. If the defendants wished to continue to rely on the termination provisions there ought to have been a ratification of the provisions as the nature of Mr. Schmidt’s employment changed."

 

Decision

The judge hearing this case relied on the following factors when deciding not to enforce the termination clause in the employment contract: ”...there is no evidence that (the employer) made it clear to the (employee) that the notice of termination provisions were intended to apply to the positions to which he was promoted. The employment agreement contains no express wording to this effect, nor does it contain any wording to support the inference of such an intent. Further, and in keeping with the analysis in Schmidt, the Court received no evidence that, as it promoted the plaintiff, SAL reasserted its understanding and expectation that the notice of termination limit would remain in effect.”

 

Lesson to be learned:

An employer should make it clear that the termination clause in an employment contract applies when an employee is promoted. This expression of this intent should be in writing and should be clear and unambiguous. I recommend that an organization’s employment be reviewed by an employment lawyer every year or two. If your employment contract does not address this issue then think about doing so the next time it is reviewed.

 

For 30 years, Doug MacLeod of   the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

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