Part XVI - Lie detectors
The intent of Part XVI of the Employment Standards Act, 2000 is to prohibit the use of lie detectors by employers and prospective employers for personnel screening purposes. To this end, no one can require, request, enable or influence, indirectly or directly, an employee to submit to a lie detector test.
The Honourable Russell H. Ramsay, then Minister of Labour, on October 25, 1983, in his remarks upon the second reading of Bill 86, Employment Standards Amendment Act, 1983, SO 1983, c 55, provided the following reasons for introducing this legislation:
Section 68 - Definitions
Section 68 was amended by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, SO 2009, c 9,effective November 6, 2009 to incorporate a reference to s. 74.12, which prohibits clients of temporary help agencies from reprising against assignment employees of temporary help agencies.
This provision is similar to s. 46 of the former Employment Standards Act. Section 68 sets out enhanced definitions of "employee" and "employer" and the definition of "lie detector test", which apply for the purposes of the following provisions of the Employment Standards Act, 2000, including Part XVI, as far as matters concerning this Part are concerned:
- Part XVII: Reprisal
- Section 74.12: Reprisal by client
- Part XXI: Who Enforces this Act and What The Can Do
- Part XXII: Complaints and Enforcement
- Part XXIII: Reviews by the Board
- Part XXIV: Collection
- Part XXV: Offences and Prosecutions
- Part XXVI: Miscellaneous Evidentiary Provisions
- Part XXVII: Regulations
- Part XXVIII: Transition
In s. 68, for matters concerning "lie detectors", the definition of "employee" is expanded to include an applicant for employment, a police officer and a person applying to become a police officer.
The definition of "employer" in s. 68 similarly expands the definition in s. 1(1) of the Act. Section 1(1) defines "employer" as follows:
In s. 68, for matters concerning "lie detectors", the definition of "employer" is expanded to include a prospective employer as well as a police governing body (i.e., Police Services Board).
Lie detector test
"Lie detector" is a popular rather than scientific term. No machine literally "detects lies." The definition in this provision encompasses any type of test taken or performed in conjunction with any type of device, instrument or machine, and for the purpose of assessing or purporting to assess the credibility of a person.
A "lie detector" commonly refers to a standard field polygraph that monitors several physiological variables by means of separate pens independently recording certain measures on a moving paper chart. The machine is connected to four "involuntary" or "autonomic" response measures and records changes in those measures. The machine does not measure lying. Rather, it indicates variations in physiological responses that are, in theory at least, not subject to the control of the person tested (Royal Commission into Metropolitan Toronto Police Practices, Report of the Royal Commission into Metropolitan Toronto Police Practices (Toronto: The Commission, 1976) at c XXIII). A "lie detector" may also include a "Psychological Stress Evaluator", that is, a voice stress analyser. This instrument is designed to register and measure changes in an individual's stress levels as reflected in his or her voice.
The definition of "lie detector test" does not include surveillance devices that are used to observe employees without assessing or purporting to assess their credibility. In other words, an employer is not precluded from testing an employee by observing and recording his or her actions. This is so, even if it involves the surreptitious observation of an employee by means of a device, since it is the employee's actions that are being observed, rather than his or her credibility in relation to statements the employee makes about his or her actions.
Section 69 - Right to refuse test
This provision is similar to s. 47(1) of the former Employment Standards Act. Section 69 establishes that employees, as defined under s. 68 of the Employment Standards Act, 2000, have a right not to take, be asked to take or be required to take a lie detector test.
The only exception to the employee's right not to be asked to take a lie detector test is provided by s. 71 of this Part, which states that a person may be asked by a police officer to take, consent to take and take a lie detector test administered on behalf of or by a member of a police force in Ontario during an investigation of an offence. However, nothing in s. 71 compels an employee to take a lie detector test administered by or on behalf of a police force.
Section 70 - Prohibition: Testing
Prohibition: Testing - s. 70(1)
This provision is substantially the same as the corresponding section (s. 47(2)) of the former Employment Standards Act. Section 70(1) prohibits any person (thus including an employer or any third party) from requiring, requesting, enabling or influencing, directly or indirectly, an employee to take a lie detector test. It is thus clear that a security service, personnel agency or any other third party is equally prohibited from requesting or requiring, whether on its own behalf or on behalf of an employer, an employee to submit to a lie detector test.
According to this section, no person may even request an employee to take a test (subject only to s. 71) since such a request would endanger the employee's statutory right not to take a test. A refusal by the employee might put his or her employment at risk, so the employee's consent might not be "free consent". As a result, an employee's right not to take a test could be compromised.
In addition, by prohibiting any person from enabling or influencing, directly or indirectly, an employee to take a lie detector test, this section implicitly prohibits any person from administering a lie detector test where the employee is unaware that he or she is being examined. For example, an employer could not use a voice stress analyser during a telephone conversation with the employee or on a tape recording of the employee's voice.
Prohibition: Disclosure - s. 70(2)
This provision is substantially the same as the corresponding section (s. 47(3)) of the former Employment Standards Act. Section 70(2) protects the employee by prohibiting any person, including the employee, from informing an employer that the employee has taken a test, and from disclosing to an employer the test results.
Section 71 - Consent to test by police
This provision is substantially the same as the corresponding section (s. 49) of the former Employment Standards Act. Section 71 ensures that s. 70(1) will not operate to preclude the voluntary submission by an employee (or any other person) to a lie detector test administered by, or on behalf of, a police force in Ontario in the course of the investigation of an offence
Section 71 allows a police officer to ask a person to take a lie detector test administered on behalf of a police force in Ontario or by a member of a police force in Ontario in the course of an investigation of an offence. Although the test may be administered by any other person (including an employer) on behalf of the police, the request to take the test must be made by a police officer. However, nothing in s. 71 compels an employee to take a lie detector test administered by or on behalf of a police force.
In response to the claim that the equivalent section under the former Employment Standards Act, s. 49, is inconsistent with the other provisions, former Attorney General Roy McMurtry, based on the 1976 Report of the Royal Commission into the Metropolitan Police Practices, stated that:
Note: courts in Canada have largely refused to admit polygraph evidence. However, the Quebec Court of Appeal ruled in R c Béland,  CA 443 (QCCA)that the results of a polygraph test are admissible as relevant evidence. This decision was appealed to the Supreme Court of Canada and its decision in R c Béland,  2 SCR 398, 1987 CanLII 27 (SCC) was released in 1987. The majority of the justices essentially ruled out the use of the lie detector test results as evidence in court. Justice McIntyre stated in the Supreme Court decision supported by five of the seven judges who heard the case: ". . .the polygraph has no place in the judicial process where it is employed as a tool to determine or to test the credibility of witnesses."