When Is A Harsh Employment Reference Defamatory?

Sometimes employment references are glowing and ensure the candidate is hired. Other references can do just the opposite and prevent future job opportunities. In the case of the latter, when is an employment reference so harsh as to become defamatory? What can an employer do to prevent being sued for a harsh reference or, if sued, to ensure she or he succeeds in defending the reference.

Defamation is the action of damaging the good reputation of someone by either libel (a written statement) or slander (a spoken statement). A defamatory statement is a statement that is made to a third party (or third parties) about an individual that would tend to lower that individual's reputation in the eyes of a reasonable person.

It stands to reason then, that any criticism of the employee is defamatory. For example, if a former employer stated that the employee "did not handle stress well" or was "not a team player" the statements would be considered defamatory in that they lower the employee's reputation in the eyes of a reasonable future employer.

Fortunately, for the former employer, there are two relevant defences to allegations of defamation. The first is truth. If the statements are true, it does not matter how much they damage the reputation of someone, they are not defamatory.

The second defence to defamation is "qualified privilege". This defence carves out certain circumstances as ones were a person can speak more freely and make potentially damaging statements to the third party. Providing an employment reference is the classic example of qualified privilege. The social policy is that an employer must be able to give a job reference with candour about the strengths and weaknesses of an employee, without fear of being sued for doing so. Without this protection, references would either not be given, or would be given such edited content as to render them unhelpful or potentially misleading to a prospective employer.

The protection of qualified privilege is not absolute, however. This protection is lost if the reference is made when the dominant motive for making the statement is actual or express malice, which includes:

a) Spite or ill will;

b) Any indirect motive or ulterior purpose which conflicts with the occasion;

c) Speaking dishonestly, or in knowing or reckless disregard for the truth.

The Lesson: If an employer remains truthful and speaks without malice, she or he can be candid about the weaknesses of the employee and can include statements that, in another context, would be defamatory.

The Second Lesson: Since there is no positive obligation to provide any reference, if you think an employee may be litigious, it may be prudent to decline to give a reference and allow a prospective employer to draw whatever conclusions from the refusal to provide a reference.

Kanak v Riggin, 2017 CanLII 30156 (ONSC) https://www.canlii.org/en/on/onsc/doc/2017/2017canlii30156/2017canlii30156.pdf

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