“Can I Be Honest?” Canadian Courts Affirm Qualified Privilege Defence to Defamatory Employment References
The Supreme Court of Canada recently denied leave to appeal in Kanak v. Riggin (“Kanak”), in which the Ontario Superior Court and Ontario Court of Appeal affirmed that employment references are protected against defamation claims by “qualified privilege”. This decision affirms for employers that, absent evidence of malice, negative references about current or former employees will generally be protected from liability for defamation.
Background: The Law of Defamation
To succeed in an action for defamation, a plaintiff must establish that the words used by the defendant (in this context, the person who gave the reference) “published” comments about the plaintiff, meaning that the comments were communicated to at least one person besides the plaintiff, and that the comments tended to lower the plaintiff’s reputation in the eyes of a reasonable person. In the context of an employment reference, defamation is likely to be established where an employer communicates something negative about an individual regarding their character or work performance. For example, comments that an employee lacked motivation or was unable to meet the requirements of the job would be defamatory.
However, the following defences are likely to apply to employers who provide negative references. If a valid defence is found to apply, there will be no liability in defamation.
First, if the defendant employer can establish that the comments are substantially grounded in truth, the defence of “justification” will apply.
Second, a defendant employer may also plead the defence of “qualified privilege”, which operates to protect honest communications made in certain circumstances, including the employment reference context. However, if malice is found to have motivated the comments, the defence of qualified privilege will not succeed. Malice may be inferred from the words used or established by evidence regarding the defendant’s ulterior motives in making the comments. Statements made carelessly and without regard to whether they are true may also fall outside the scope of qualified privilege. The decision in Kanak primarily concerns the “qualified privilege” defence.
Ms. Kanak sued her former manager, Mr. Riggin, for statements he made during a reference check, which caused a prospective employer to rescind its offer of employment. Ms. Kanak had worked for the prior employer for 5 years. Ms. Kanak’s direct supervisor during this period, Mr. Keeler, held high opinions of her job performance and was unaware of Mr. Riggin’s concerns with her performance.
After being laid off from the prior employer, Ms. Kanak received a conditional offer of employment from Bruce Power, subject to a reference check. An employee from Bruce Power telephoned Mr. Keeler, who gave a positive reference and passed along Mr. Riggin’s name as someone with further experience managing Ms. Kanak. After speaking to Mr. Riggin, Bruce Power advised Ms. Kanak that she had failed to meet the conditions of employment because of the negative reference that Mr. Riggin provided.
The plaintiff’s claim of defamation was based on the written notes the Bruce Power employee took from the phone call with Mr. Riggin. The allegedly defamatory statements were that there was considerable conflict between Ms. Kanak, her supervisor and other employees; that Ms. Kanak did not take direction well, was narrowly-focused, and handled stress poorly; and that Mr. Riggin would not re-hire her.
Mr. Riggin admitted to making some of the comments and qualified some of the others. Having determined that the words established as spoken by Mr. Riggin were defamatory, the Ontario Superior Court of Justice considered whether they were subject to qualified privilege.
The Court noted that there are strong policy reasons to protect both current and former employers from liability when giving employment references, and that the employment reference has been described as a “classic occasion of qualified privilege” (para. 26).
Ms. Kanak argued, among other things, that the qualified privilege was defeated because the defamatory statements were motivated by malice. As proof, she cited three workplace incidents in which she purportedly embarrassed Mr. Riggin. The Court rejected her claims that these incidents caused Mr. Riggin to develop ill will against her. Although Mr. Riggin had never communicated displeasure with Ms. Kanak’s performance to her, and the evidence showed that others, including Mr. Keeler, held positive opinions of her, the Court held that the difference in Mr. Riggin’s view and those of other witnesses was not sufficient to infer malice.
In brief reasons, the Ontario Court of Appeal dismissed Ms. Kanak’s appeal on the defamation issue. The Supreme Court of Canada denied further leave to appeal, and, accordingly, the law in this area appears to be quite settled.
This case is a reminder that employers can take some measure of comfort when disclosing honestly held views about current or former employees to other prospective employers. Provided that the comments are honestly held and are not motivated by malice, a person who gives the reference does not necessarily have to prove a factual basis for their views, and is entitled to hold opinions differing from those of others in the workplace.
However, the defence of qualified privilege will not protect all employment references from defamation claims. To avoid a finding of malice, employers should:
- ensure that potentially adverse statements about a worker are conveyed in a professional manner using moderate language and tone (where possible, it is also advisable to base such statements on objective evidence – file documents or first-hand experience);
- balance comments respecting the employee’s flaws with comments regarding their positive attributes; and
- be cognizant of any contextual circumstances or history involving the employee that may suggest vengeful intent or ill will on the part of the person providing the reference.
Some employers may choose to avoid the possibility of liability for defamation by refusing to provide employment references at all, as there is generally no legal obligation to provide a reference. For example, some employers have a policy of only confirming the dates of employment and position held by former employees. The only issue with such a policy is that if enough employers adopt such policies, reference checks may become very difficult, if impossible, to conduct. As noted in the Kanak decision, the ability of an employer to be candid about the strengths and weaknesses of a worker is an important social policy that aids all employers in their pursuit for qualified future employees. Accordingly, another option is to channel all reference checks through human resources so that the statements will be vetted before being communicated.
 Grant v Torstar Corp., 2009 SCC 61