Employers are sometimes reluctant to provide substantive references for former employees out of fear of liability for defamation, but is that concern overstated? Recent case law continues to affirm that employment references are an occasion of ‘qualified privilege’ – a complete defence to a defamation claim, unless the person providing the reference was motivated by malice.
In Kanak v. Riggin, 2017 ONSC 2837, Ms. Kanak commenced a claim against her former manager for defamation arising from comments he made about her during a reference check. Among other things, the manager stated that there was a lot of conflict between Ms. Kanak and other employees; she did not take direction well; did not handle stress well; and he would not re-hire Ms. Kanak. Ms. Kanak argued that in making these comments, the manager was motivated by malice and spite.
The trial judge found that the words communicated by the manager were defamatory. However, because the words were communicated in the context of an employment reference, the defence of qualified privilege applied.
The court discussed the social policy underlying the qualified privilege defence. If employers could not give references candidly, without fear of being sued by employees, references would either be so edited as to render them unhelpful or employers would not give references at all. Ms. Kanak had argued that qualified privilege did not apply to references provided by former employers, but the court did not agree with that submission. Unless Ms. Kanak could establish that the manager’s comments were motivated by malice, the defamation claim must fail. The court found that the evidence did not establish malice and Ms. Kanak’s action was dismissed accordingly.
This decision does not represent a material change in the law, but it reaffirms the existing protections for employers in the law of defamation. Provided employers respond to reference checks honestly and in good faith, the risk of a meritorious defamation claim by an employee remains quite low.
For more information about this article, please contact Nicole Toye.