No Liability for Negative Employment References

In the recent decision of Kanak v. Riggin, 2018 ONCA 345, the Ontario Court of Appeal affirmed that a manager was not liable for providing a negative employment reference.

The case originated when Tracey Kanak sued her former manager for defamation after he gave her a negative employment reference. Darryl Riggin admitted to providing a negative reference, which included statements like Kanak did not take direction well, was narrowly focused, did not handle stress well, and was often in conflict with others. He claimed that he also spoke of her strengths, but acknowledged that he ultimately said he would not re-hire Kanak.

Kanak alleged that these statements were defamatory, and were motivated by malice, spite and a desire to get revenge. The tort of defamation requires the plaintiff to prove three things:

1. The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person
2. The words in fact referred to the plaintiff; and
3. The words were published, meaning they were communicated to at least one person other that the plaintiff.

Once the plaintiff proves the required elements, the onus then shifts to the defendant to present a defence in order to escape liability.

While the court in this case did accept that the statements made by Riggins were defamatory, Riggins put forward a defence of qualified privilege. The defence of qualified privilege allows for free communication in certain relationships, generally where the person communicating the statement has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it. In its decision, the court affirmed that remarks made as part of an employment reference are a “classic occasion of qualified privilege.” The court went on to articulate the important social function of candid employment references.

While it is settled law that a defence of “qualified privilege” will be defeated if a statement was motivated by malice, the court did not find any evidence of malice in this case.

Advice to Employers:
This case confirms that employers can be protected when providing candid employment references. However, negative references can attract liability if they are seen to be motivated by malice. Accordingly, employers are still cautioned to make sure that references provided are accurate and made in good faith. Since it can be difficult to control what individuals might communicate if contracted for a reference, as a best practice, organizations can designate specific individuals to handle any reference inquiries.