Ontario employers can speak candidly about former employees' weaknesses when providing job references, as long as the dominant motive for the reference is not malicious, the Supreme Court of Canada (SCC) recently indicated. The SCC declined to review a lower court's finding that a plaintiff failed to prove her former manager defamed her by giving her a negative reference that led to revocation of a job offer.

The plaintiff sought to prove her former manager was liable for defamation after the manager's negative job reference led to the job offer revocation. After the Court of Appeal for Ontario (OCA) upheld the lower court's decision, which did not find the manager liable, the plaintiff tried to appeal to the SCC. But the SCC declined to hear her appeal.

The lower court found that when providing the reference, the manager had stated that:

• There was a lot of conflict between the plaintiff, her supervisor and other employees.
• The plaintiff did not take directions well.
• The plaintiff did not handle stress well.
• The manager would not rehire the plaintiff for certain types of positions.

The plaintiff did prove the elements of defamation summarized in Papp v. Stokes (Sup Ct J (Ont.) 2017 ONSC 2357 (2017-04-18)). The court concluded that the manager's words were specifically about the employee, were communicated to the person who contacted him for the reference and lowered the employee's reputation in the eyes of a reasonable person.

Nonetheless, the lower court agreed with the manager that he was protected because his remarks were made in the context of an employment reference. The court noted that "The social policy underpinning the protection of employment references in this manner is clear: an employer must be able to give a job reference with candor as to the strengths and weaknesses of an employee, without fear of being sued in defamation for doing so. Without this protection, references would either not be given, or would be given with such edited content as to render them at best unhelpful or at worst misleading to a prospective employer."

Someone would lose the protection, however, if the plaintiff could prove that the defendant's dominant motive for the defamatory statements was malice. The court concluded that since the evidence did not establish malice, the plaintiff had not defeated the manager's defense of qualified privilege.

Kanak v. Riggin (Sup Ct J (Ont.), 2017 ONSC 2837 (2017-05-18), upheld by the OCA, 2018 ONCA 345 (2018-03-09), leave to appeal to the SCC denied, 2019 CanLII 1628 (2019-01-17)).

Professional Pointer: Employers that speak candidly about the weaknesses of an employee when providing a reference risk the possibility that a disgruntled former employee will sue them for defamation. An employer should not mislead a prospective employer when providing a reference, but instead should be practical and should exercise a measure of caution.

Republished with permission of SHRM. © 2019 SHRM. All rights reserved.