The document discusses issues that can arise when conducting background checks on candidates and employees. It covers checking criminal records, credit histories, verifying resumes and references. It also discusses managing employee conduct on social media and the potential immigration implications of hiring foreign nationals with criminal convictions. Employers are advised to obtain proper consent, have policies addressing dishonesty or misrepresentation, and consider relevance when taking action related to off-duty conduct or background check findings.

1. When the Skeletons in the
Closet Start to Rattle … !
By P.A. Neena Gupta and Lesley Love

2. Overview
1. Background Checks
2. Credit Checks
3. Misrepresentations on Resumes
4. Disciplining for Off-Duty Conduct
5. Employee conduct on Social Media
6. Managing the Immigration Implications
2

3. Background Checks
• Background checks are a screening tool
• Criminal Record
• Credit Record
• Academic
• References
• Significant “errors” on resume or applications
• Exaggerated academic credentials
• Inflated job titles or responsibilities
• Lies about reasons for leaving previous jobs
3

4. Obtain Consent to Background Check
• Written consent required for:
• Criminal background check
• Credit checks
• Confirmation of employment information from
previous employer
• Academic confirmation
• Ensure consent broad enough to permit
obtaining information from individuals other
than named or specific employees
4

5. Tales from the Crypt!
Geraldine hired the perfect candidate after
checking the references he supplied on his
impressive resume.
Employee ends up being a complete disaster.
References were all false; friends at entry-
level positions pretending to be managerial or
director-level hire.
5

6. Employment Contract
• Make offer subject to satisfactory background
checks
• If background checks unsatisfactory, offer
withdrawn or if employee has started work,
grounds for termination
• Indicate that any misrepresentation on the
resume or application form constitutes grounds
for termination with just cause
6

7. Lying on a Resume
• Is your offer letter conditional upon reference
checks being made and passed?
• Explicitly advise lying on resume grounds for
termination
• Do you perform thorough reference checks?
• What if a candidate lies on their resume?
• What if you don’t discover the lie until after the
candidate is hired?
• If an employee misrepresents their qualifications, it can
constitute just cause for dismissal.
• Is the misrepresentation “material”? i.e. was the qualification
they lied about to have a key reason for you hiring them?
7

8. Criminal Background Checks
• Mandatory
• Children
• Vulnerable adults
• Bonded employees
• Highly Recommended
• Handling cash or inventory
• Managerial or supervisory employee
8

9. Criminal Background Checks
• Private background companies can do a “query”
• Name and date of birth
• Requires written consent (usually on company form)
• Often require copies of 2 pieces of ID
• Initial “query” based on employee name and date of birth
• Can lead to false positives (how many John Smiths born
on March 1, 1972 in Toronto?)
• Will not catch people who have changed names (e.g.
marriage)

10. Tales from the Crypt!
Jamie MacDonald, born November 1, 1972 in
Sydney, Nova Scotia was nearly fired from his
job as a medical technician when a criminal
background check showed NUMEROUS
convictions for fraud, assault, aggravated
assault. Employer confronted Jamie, who
indicated it was not him.
10

11. Criminal Background Check
• Only authoritative background check is
“fingerprint” test
• Can only be done at police station
• 3 week to 3 month delay, depending on location
• The good “Jamie” was cleared
11

12. You Discover the Candidate/an Employee has a
Criminal Record – What Next?
• Employer can only consider criminal offences for which
no pardon has been granted
• However, if unpardoned, the candidate/employee has no
protection under the Code; pardon not sufficient for
immigration purposes
• Some case law suggests that Code even protects against
discrimination on the basis of pending charges
• Should not consider provincial offences (such as highway
traffic act) unless directly relevant

13. Credit Checks
• Why ask for one?
• Is the employee going to be handling money?
• Is the employee in a key financial position?
• Employer’s are entitled to perform Credit Checks, but must
comply with Consumer Protection Legislation.
• A candidate must be notified in writing, in bold type or
underlined and in letters at least 10 point in size, before the
check is done
• If the candidate asks, they must be given the name and
address of the consumer reporting agency supplying the
report
• Have the candidate sign a consent before conducting the
check
• Be sure to keep the information received confidential

14. Termination for Off-Duty Conduct
• An employer must show a “nexus” between the employee’s
misconduct and the employer’s “legitimate business interests.”
• In Kelly v. Linamar, an employee was terminated days after
being charged with possession of child pornography.
• Grounds: the companies reputational loss in the community.
• Linamar lead extensive evidence regarding its charitable work with children’s
programs in the community.
• The employee plead guilty a year and a half later.
• Employee brought a wrongful dismissal claim against
Linamar.

15. Off-Duty Conduct – Criminal Offences
• Criminal charge does not automatically mean just
cause
• Do not rush to judgment
• Consider the nature of the offence
• Is it related to the job?
• Is it relevant to the performance of his or her job duties?
• Is the position high profile? In the media?
• Does the charge interfere with the employee’s ability to discharge position?
(e.g. travel, time in jail)

16. Termination for Off-Duty Conduct
• The judge dismissed the claim, stating:
• Linamar has over a long period of time built up a good reputation which it
jealously protects. That reputation includes the promotion of its activities with
young people outlined earlier. A company is entitled to take reasonable steps
to protect such a reputation and the termination of Philip Kelly was just such a
step. The employer has demonstrated just cause on far more than the balance
of probabilities.
• Interesting, the judge went on to note:
• Subsequent to the decision to terminate two things happened which, had they
happened earlier, would have strengthened the employer’s position even
more. Mr. Kelly was eventually convicted of the charge of which he was
merely suspected at the time of his termination and the identity of his
employer which had been known only to others within the corporation became
a matter of public record.
• In other words, there was an element of risk involved. What
would the consequences have been for the employer if he
had been found not guilty?

17. Consequences of Making False Allegation
Against Employee
• John Pate was the chief building official for the Townships
of Galway and Cavendish from 1990-1999
• Shortly after accepting a demotion following an
amalgamation of the townships, he was accused by his new
boss of stealing building permit fees
• Told to resign or the police would be notified – Pate refused
and was charged with theft
• Acquitted at trial in 2002 where it was revealed that the
employer had withheld evidence from the OPP, including an
internal investigation prior to Pate’s termination that found
he and others were innocent

18. The Decision
• Ultimately awarded $550,000 in punitive
damages
• Significant misconduct by the employer lasting over a
lengthy period, including intentional withholding of
exculpatory evidence
• Devastating impact on employee’s life, including his
marriage and prospects for future employability

19. Use of Social Media
• Are you “friends” with your employees on social
media?
• Lougheed Imports Ltd. (West Coast Mazda) v. UFCW Local 1518
• Employee making threatening posts on Facebook:
• “Sometimes ya have good smooth days, when nobodys f**king with your ability
to earn a living....and sometimes accidents DO happen…”
• “All I Gotta say is they pissed off the WRONG GUY ....big time”
• “west cost detail and accessory is a f***in joke…don’t spend your money
there… ripped off a bunch of ppl I know.”
• The Employee’s supervisor was “friends” with him, and monitored
the conversation. Ultimately terminated his employment.
19

20. Lougheed Imports Ltd. (West Coast Mazda) v. UFCW
Local 1518
• In upholding the terminations, the B.C. Labour
Relations Board made the following findings:
• The offensive comments made by the employee about
his supervisor amounted to insubordination
• The employee had over a hundred “friends” on
Facebook, including co-workers and his supervisor. As
such, he did not have any reasonable expectation of
privacy when he posted on Facebook
• He made comments damaging to the employer’s
business and reputation.
20

21. Lougheed Imports Ltd. (West Coast Mazda) v. UFCW
Local 1518
• Social Media can be just cause for termination:
• Insubordination
• Dishonesty
• Conduct detrimental to employer
• Social Media unlikely to be considered “private”
if available fairly widely
21

22. Social Media – Double-edged Sword
• May learn of information that reveals too much
information
• Religious affiliation
• Sexual orientation
• Illness or disability
• Family illness
• Pregnancy/number of children
• Exposes employer to accusation of
discrimination
22

23. Social Media – Double-edged Sword
• Have social medial policy for HR
• If using social media in recruitment or
promotion, make sure person vetting person on
internet knows what is relevant and not relevant
• Ensure person making decisions not person
surfing internet and is only given relevant
information
23

24. Immigration Implications
• Foreign nationals are inadmissible to Canada
due to past criminal activity if they were
convicted of an offence in Canada or were
convicted of an offence outside of Canada that is
considered a crime in Canada
• Canada does allow foreign nationals with
criminal records into Canada under certain
circumstances
24

25. Overcoming Inadmissibility
• What to do if you have a foreign national with a
criminal record, who needs to come to Canada?
• Temporary Resident Permit
• Deemed Rehabilitation
• Rehabilitation
25

26. Temporary Resident Permit
• If criminally inadmissible but have a valid reason
to travel to Canada, a foreign national may be
issued a TRP
• Less than 5 years has passed since the end of the
sentence and/or
• Benefit to Canada outweigh the risk of re-offending
26

27. Temporary Resident Permit
• Reasons for a TRP to be granted
• Work for employer either abroad or in Canada that
benefits economy
• Cultural benefit to Canada
• Personal reasons – spouse, children, ill relative
• Minor crime is typically not a factor
27

28. Temporary Resident Permit
• A permit will be granted for the length of time a
foreign national is required in Canada (i.e. 1 year
work permit = 1 year TRP)
• TRP’s must typically be applied for at the
Consulate, in certain circumstances a TRP may
be requested and granted at the port of entry
28

29. Deemed Rehabilitation
• Under the Immigration and Refugee Protection
Act, Deemed rehabilitation means that enough
time has passed since the conviction and
conclusion of the sentence that the foreign
national is considered absolved of their crime
29

30. Deemed Rehabilitation
• Considerations for Deemed Rehabilitation:
• the nature of the crime
• how much time has passed since completion of
sentence
• number of crimes committed
• Deemed Rehabilitation is only an option if the
crime would be punishable by a maximum term
of less than 10 years
30

31. Rehabilitation
• Rehabilitation removes the criminal
inadmissibility of a foreign national
• If foreign national is not eligible to be deemed
rehabilitated you must apply for individual
rehabilitation to enter Canada
• Rehabilitation means that the foreign national
leads a stable life and that is not likely to commit
new crimes
31

32. Rehabilitation
• To apply for Rehabilitation:
• At least 5 years must have passed since the
completion of sentence
• An application must be submitted to a Consulate
• Current processing times are approximately 2 years
32

33. Overcoming Inadmissibility
• Documents required:
• Court records
• Evidence of completion of sentences
• Police clearance reports
• Reference letters
• Invitation letter
• Photos
• Fee
33

34. Canadian Pardon
• If the foreign national has a criminal conviction
from within Canada a Pardon (now a Record
Suspension) will be required prior to re-
admittance to Canada
• Must carry pardon with them when entering
Canada
34

35. Canadian Pardon
• In order to be considered for a record
suspension under the Criminal Records Act, a
specified period of time must pass after the end
of the sentence imposed
• The usual waiting period for offences:
• ten (10) years if prosecuted by indictment
• five (5) years for summary convictions
35

36. Criminal Ineligibility in the U.S.
• Like Canada, foreign nationals with a criminal
history will be denied entry into the U.S.
• Not all criminal convictions create an ineligibility
to enter the U.S., but any past criminal record
must be declared
36

37. Waiver of Ineligibility
• If you are ineligible to enter the United States,
you may apply for a waiver of ineligibility
• Must be done well in advance of any planned
entry
• Many of the same documents are required
37

38. Overcoming Inadmissibility
• Foreign nationals who are inadmissible due to a
criminal past may be allowed entry
• Plan ahead, ask questions and be prepared
38

39. Thank You
P.A. Neena Gupta
Gowling Lafleur Henderson LLP
Barristers & Solicitors
50 Queen Street North
Suite 1020
Kitchener, ON, N2H 6M2
Direct Tel: 519.575.6910
Direct Fax: 519.571.5001
Email: neena.gupta@gowlings.com
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40. Thank You
Lesley Love
Gowling Lafleur Henderson LLP
Barristers & Solicitors
50 Queen Street North
Suite 1020
Kitchener, ON, N2H 6M2
Direct Tel: 519.569.4562
Direct Fax: 519.569.4062
Email: lesley.love@gowlings.com
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