Reference Checks in Ontario

Reference Checks in Ontario

Reference checks give employers the opportunity to gain insight from people who have worked with a potential candidate. They help employers understand how candidates operate in the workplace and make more informed hiring decisions. This blog explores the risks and responsibilities that come with reference checks, especially regarding privacy and fairness.

What Is a Reference Check

A reference check is usually a conversation between a prospective employer and a former employer, manager, or colleague of a job applicant. Reference checks may not be necessary for every job role, but employers often ask for a list of references during the hiring process.

The goal of a reference check is to verify the information provided by the candidate and gain insight into their qualifications, work experience, and workplace behaviour. It is difficult to fully understand a candidate through one interview, so reference checks can provide additional clarity.

In Ontario, reference checks may happen before or after a job offer depending on the employer’s process. They typically involve the sharing and collection of personal information.

When Is a Reference Check Necessary

Reference checks are common for positions where trust, responsibility, and reliability are especially important. They help employers confirm details from resumes or interviews and identify any potential concerns about past performance.

Reference checks are not legally required, but they are widely considered a useful way to reduce hiring risks and make stronger decisions for the organization.

Privacy Laws on Reference Checks

In Ontario, the main privacy law that applies to reference checks for most private sector employers is the federal Personal Information Protection and Electronic Documents Act. Ontario does not have its own full private sector privacy law, so the federal act regulates the collection, use, and disclosure of personal information during commercial activity, including reference checks.

This includes information such as employment history, job performance, and personal opinions about the candidate.

Do Reference Checks Require Consent

While the federal act does not mention reference checks directly, it requires organizations to obtain meaningful consent when collecting, using, or disclosing personal information.

Before contacting references or sharing information with them, employers should obtain clear consent to stay transparent and avoid legal risks. This includes:

• Contacting only the references listed by the candidate

• Notifying the candidate before contacting those references

• Obtaining written consent

Risks for the Reference Provider

Providing a reference can involve several risks. Examples include:

• Breach of privacy if personal information is shared without consent

• Defamation claims if incorrect or damaging statements are made

• Negligent misstatement if false or misleading information causes harm to the hiring employer

• Human rights violations if discriminatory comments are made about protected grounds such as race, gender, disability, religion, or age

Risks for the Hiring Employer

Employers conducting reference checks may also face risks, such as:

• Violating privacy laws by collecting information without consent

• Relying on discriminatory information, which can lead to human rights complaints

• Engaging in unfair hiring practices by failing to verify the accuracy of information

What Employers Can and Cannot Ask

Questions asked during reference checks must relate to job qualifications, performance, and responsibilities. Employers must not ask questions linked to protected grounds under the Ontario Human Rights Code. These include:

• Age

• Marital or family status

• Sexual orientation or gender identity

• Disability

• Race or ethnicity

• Religion

• Political beliefs

Even indirect questions can create liability. For example, asking about absenteeism could be discriminatory if the absences were disability related. Asking about fitting into a young or energetic team could be viewed as age discrimination.

Employers must ensure that their reference check practices do not lead to discrimination in any form. The Code applies throughout the entire hiring process.

What If You Refuse a Reference Check

Employers are not required by law to provide a reference and can refuse as long as the refusal is consistent and not based on discriminatory reasons. Many organizations choose to provide only employment dates and job titles to reduce risk.

However, refusing references for particular employees, such as those who took parental leave or filed complaints, could be interpreted as discrimination or reprisal.

Takeaways

Reference checks remain an important step in many hiring processes. In Ontario, they must be carried out with care, respect for privacy, and attention to human rights obligations. Good planning, documentation, and clear processes help employers make informed hiring decisions while avoiding unnecessary risks.

If you are unsure about your responsibilities, what you can ask, or how to handle sensitive information, we encourage you to contact employment lawyers at Sultan Lawyers online or by telephone at 647 952 9353.