In Lawetz v Wigboldus, 2024 BCSC 1867, the BC Supreme Court dismissed a defamation claim filed by an employee against their prior supervisor who provided a candid reference to a prospective employer.
The Facts
The defendant was the plaintiff’s former supervisor. When the plaintiff interviewed for a position at another company, one of the individuals on the hiring panel was an acquaintance of the defendant and became aware that the plaintiff and defendant had previously worked together. She contacted the defendant informally via text message seeking feedback about the plaintiff, and the defendant provided a fairly negative reference. The plaintiff was unsuccessful in securing the position and filed a defamation claim against the former supervisor personally, seeking general, special, and punitive damages.
The Decision
The Court found that some of the defendant’s statements met the prima facie test for defamation because the comments would tend to lower the plaintiff’s reputation in the eyes of a reasonable person, the comments referred to the plaintiff and were published (communicated to at least one other person) As a result, the Court turned its attention to whether the defendant could establish a viable defence to the claim of defamation.
The Court considered the defence of qualified privilege, which applies if the person making the comment has an interest or a legal, social, moral, or personal duty to convey the information at issue to another person, and that other person has a corresponding interest or duty to receive it. The Court noted that the provision of an employment reference is a “classic occasion of qualified privilege”.
The defence of qualified privilege may be defeated if the dominant purpose for making the statements was malice. The plaintiff bears the onus of displacing the presumption against malice, by showing that the statements were made:
The Court found that there was a complete lack of evidence of any malice on the defendant’s part, and therefore, the defence of qualified privilege succeeded.
The Court also considered the defence of justification (truth) which is a complete defence to a claim of defamation. The Court held that the defendant’s statements were a combination of fact and opinion and that they were either true, substantially true, or the result of the defendant’s honestly held opinions about the plaintiff as a sales representative.
Accordingly, the plaintiff’s defamation claim was dismissed.
Key Takeaways
Although employers may be reluctant to provide negative references out of concern for potential liability, this case demonstrates that there are viable defences available to a claim of defamation for individuals who provide references honestly and without malice. However, employers should ensure the reference is not given due to spite or ill will, for an indirect or ulterior purpose that conflicts with the purpose of providing a job reference, or dishonestly.
In addition to concerns around potential defamation claims, employers should also be mindful of their obligations under privacy laws. Though not the focus of this particular case, employee personal information should not be disclosed to a third-party without obtaining the employee’s consent.
If you have any questions about this decision, please contact your Harris lawyer.
