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Is It Safe To Give Honest Employment References For Former Employees?

21-Jan-19

By Hugh McPhail, Q.C.

Many employers now have a practice of not giving employment references at all. That can prevent future employers from finding out about very serious misconduct. It is arguably an excessive reaction to a concern about possible defamation claims by the departed employee. A recent Ontario case is weighty on this topic because the decision at trial was approved by the Ontario Court of Appeal and leave was denied by the Supreme Court of Canada.

In Kanak v. Riggin, an employee was hired subject to a positive reference check. When the new employer checked with the former manager, he said the following:

  1. There was a lot of conflict between Ms. Kanak, her supervisor and other employees;
  2. Ms. Kanak did not take directions well;
  3. Ms. Kanak does not handle stress well; and
  4. He would not re-hire Ms. Kanak in a project controls position, but would hire her in an autonomous financial position.

Based on that information, the new employer withdrew its offer and cancelled the hiring. That led to the employee suing her former manager for defaming her in the provision of the reference.

Ms. Kanak’s claim was dismissed at trial. The court noted that the context of providing an employment reference is a situation of “qualified privilege” which under defamation law means that there is no liability unless the statements were not only false but malicious. The court adopted the following definition of “malice”:

Actual or express malice includes:

  1. Spite or ill will;
  2. Any indirect motive or ulterior purpose which conflicts with the occasion;
  3. Speaking dishonestly, or in knowing or reckless disregard for the truth.

The court concluded that the former manager did not act with malice. The claim was therefore dismissed. The decision was upheld by the Court of Appeal and leave to appeal to the Supreme Court of Canada was denied.

The case does not depart from past cases but it is a good reminder that it is very hard to win a lawsuit against someone for defamation when a negative reference is provided to prospective employers. Honesty is a defence. On the other hand, the history of the case is also a reminder that, regardless of how strong your defence is, you could still be dragged through expensive legal proceedings.

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