Employment References May Be Protected Against Defamation Claims

The Supreme Court of Canada denied leave to appeal in Kanak v. Riggin, 2019 CanLII 1628 [hereinafter “Riggin”], a case in which the Ontario Superior Court and the Ontario Court of Appeal affirmed employment references are protected against defamation claims by the defence of qualified privilege.

For those called upon to provide such employment references, this case sheds light on the conflict many face. Fearing the consequences their candour may bring, they ask themselves “How honest can I be?”

Employment references, by design, are meant for prospective employers to reach out to former employers in the hopes of having candid discussions about potential employees so as to assess the employee’s suitability for employment. Employers need to be able to provide these references candidly and without fear of facing defamation allegations. This case tells you how to do so successfully.

The plaintiff, Kanak, worked for a company for approximately 5 years before being laid off. Her former manager was the defendant, Riggin. During her employment, she received positive performance ratings, salary increases, and was selected by her employer for an assignment in another country.

Shortly after the layoff, Kanak was offered a conditional offer of employment from another company. One of the conditions of that offer was positive reference checks. That offer of employment was later revoked because of the negative reference Riggin provided. Kanak sued Riggin for defamation.

The comments that formed the basis of Kanak’s claim were taken from the notes made by the individual who had contacted Riggin for the reference, during their discussion. Riggin was not told by the caller that Kanak had been offered a conditional offer, nor what position she was being considered for.

Riggin admitted he commented that Kanak had a lot of conflict with her supervisor and other employees, that she did not take direction well nor handled stress well. He added he would not hire her for a particular position, but referenced other roles he would hire her for.

The issue of defamation in the context of employment had also recently been decided in another matter, Papp v. Stokes. That case stated three things needed to be proven to succeed in a claim of defamation. It must be proven that the words were defamatory, such that they would lower the individual’s reputation in the eyes of a reasonable person. Secondly, that the words in fact referred to the plaintiff and lastly, the words were published, in other words were communicated to at least one person other than the plaintiff. Papp was analyzed in Kanak.

Accordingly, Riggin’s comments were in fact found to be defamatory of the plaintiff. However, Riggin pled the defence of qualified privilege which can be used to protect honest communications made in certain situations, including employment references. Riggin stated the defence should apply as his comments were made in the context of such a reference. The court determined there was no dispute the comments provided by Riggin were done so in the context of a call for a job reference. It was therefore concluded the statements were made on an occasion of qualified privilege.

That next led to the court’s analysis of whether the qualified privilege could be defeated by malice. And while malice could occur either intrinsically concerning the words spoken or extrinsically by extrinsic evidence, the court found Riggin’s defamatory comments were not so inflammatory as to infer malice from their utterance.

The court was clear to note however, it was settled law the protection of this particular privilege could be lost where the plaintiff proves the main motive for the defamatory expression is malice, specifically actual or express malice. Here, the court noted those kinds of malice would include spite or ill will, indirect motive or ulterior purpose in conflict with the situation or in speaking dishonestly or in knowing or reckless disregard for the truth.

Riggin was found to be a credible witness. He was found neither dishonest nor reckless in his comments about Kanak. Ultimately the evidence was found to not establish malice on the part of Riggin and therefore Kanak failed to defeat the defence of qualified privilege pled by her former manager. Consequently, while Riggin’s comments were found defamatory, they were not made maliciously and therefore were protected by qualified privilege.

This case provides encouragement to employers when asked to provide employment references of former employees. “How honest can I be”? Providing comments about honestly held beliefs that were unmotivated by malice ultimately proved successful for Riggin

While, as the court noted, qualified privilege will not provide a defence to all employment references facing allegations of defamation, the case outlines some clear guidelines on how to proceed the next time you get a call for a job reference.