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Providing an Employment Reference: Can You Be Honest?

February 12, 2019

Author: Matt Bobawsky

Providing an Employment Reference: Can You Be Honest?

Employers regularly provide current and former employees an employment reference. In the case of an employee who was dismissed without cause, it’s usually in the employer’s best interest to provide a positive reference so that the departing employee can quickly find replacement employment and, as a consequence, reduce the employer’s damages.

But a question that often arises for employers is: can you give an honest (negative) employment reference without attracting liability?

Kanak v Riggin

In Kanak v Riggin, the Ontario Superior Court of Justice provided a partial answer to that question.[1] The plaintiff sued her former manager for, among other things, defamation in relation to negative statements made while providing an employment reference to the plaintiff’s prospective employer. The plaintiff’s former manager stated that the plaintiff did not take direction well, did not handle stress well, was engaged in a lot of conflict with her supervisor and that she was better suited for a position other than the one she had worked in. These comments caused plaintiff’s prospective employer to revoke its conditional offer of employment to the plaintiff.

The Court dismissed the plaintiff’s lawsuit.[2] It held that job references are protected by qualified privilege.[3] The Court stated:

Social Policy of Employment References

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 candour 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.[4]

Notwithstanding Kanak employers are still well advised to be cautious when providing references for a number of reasons:

  1. The defence of qualified privilege does not apply where the reference is provided with malice. This includes negative references provided with spite or ill will, an indirect or ulterior motive, and speaking dishonestly, or with reckless disregard for the truth.[5]
  2. An employer can still be found liable for negligence in providing a reference. For example, in Spring (AP) v Guardian Assurance PLC (1994)[6], the British House of Lords awarded an employee damages as a result of a “careless misstatement” made by former employer over the course of providing an employment reference.
  3. Where the employees are dismissed without cause, a poor reference[7] or refusing to provide a reference all together[8] can lead to increased damages awards in wrongful dismissal cases.

In the event you have questions about providing an employment reference or about receiving a negative employment reference, please contact Carbert Waite LLP. Our experienced employment lawyers would be pleased to assist.

[1] Kanak v Riggin2017 ONSC 2837, aff’d 2018 ONCA 2837, leave to appeal to SCC refused, 2019 CanLII 1628 (SCC).

[2] Ibid at para 67.

[3] Ibid at para 29-30.

[4] Ibid at para 27; see also Sapiro v Leader Publishing Co Ltd, [1926] 3 DLR 68 at para 15, 1926 CanLII 130 (SKCA).

[5] Roger D. McConchie & David Potts, Canadian Libel and Slander Actions (Irwin Law Inc: Toronto, 2004) at p 405-406.

[6] Spring (AP) v Guardian Assurance PLC (1994), 16 CCEL (2d) 147 (HL); Howard A. Levitt, The Law of Dismissal in Canada, 3rd ed (Toronto: Thomsen Reuters, 2014) (loose-leaf updated 2003) ch 14, at 120.

[7] Gillman v Saan Stores Ltd, 6 Alta LR (3d) 72 at para 34, 1992 CanLII 6202 (ABQB).

[8] Bogden v Purolator Courier Ltd, 182 AR 216 at para 100, 1996 CanLII 10572 (ABQB).