As kids, we learned that telling the truth was the right thing to do, but ask a lawyer and this golden rule is likely to become a little bit tarnished! However, a recent decision about honesty when providing a former employee with a reference might make us all feel a little better about telling the truth.
Kanak v. Riggin
On January 17, 2019, the Supreme Court of Canada denied leave to appeal in the case of Kanak v. Riggin. In 2018, the Ontario Court of Appeal upheld the 2017 trial judge’s decision which gave the thumbs up to honesty when it comes to giving employee references.
In this case, Ms. Kanak, a former employee of Mr. Riggin, was offered a job conditional upon a positive reference check. Ms. Kanak gave Mr. Riggin as her reference. When contacted by the new employer, Mr. Riggin was honest with his feedback, which led the new employer to rescind the job offer. Ms. Kanak then sued Mr. Riggin for defamation. She plead that he was motivated to make unflattering statements about her by malice, spite and a desire for revenge.
The Honest Truth
When asked, Mr. Riggin had told the new employer the following about Ms. Kanak:
- There was a lot of conflict between Ms. Kanak, her supervisor and other employees;
- Ms. Kanak did not take directions well;
- Ms. Kanak is narrowly-focused;
- Ms. Kanak did not handle stress well; and
- He would not re-hire her.
Mr. Riggin denied being motivated by malice. He stated that he acted in good faith and that his statements were accurate. Notably, while working under Mr. Riggin, Ms. Kanak had consistently received positive performance reviews and merit-based pay increases. She had been laid off, along with other employees, due to the sale of the business and through no fault of her own.
The trial judge found that Mr. Riggin’s statements about Ms. Kanak did amount to defamation but that qualified privilege was a defence.
The legal test for defamation requires that all of the following be established:
- The words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
- That the words in fact referred to the plaintiff; and
- That the words were published, meaning that they were communicated to at least one person other than the plaintiff.
While defamation was made out here, defamation in the form of an employment reference attracts no liability because it is a situation of qualified privilege.
On this point, the judge said the following:
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.
Qualified privilege can be defeated, and liability for defamation can arise only where the statements are false AND malicious. The trial judge concluded that Mr. Riggin’s reference was not malicious. Thus the qualified privilege remained intact and Ms. Kanak’s action for defamation failed.
Other than hurt feelings and the potential for being dragged through expensive legal proceedings (admittedly things that can be big deals), employers should feel (mostly) free to be honest when providing references. As long as the employer is truthful and not acting with malice, disgruntled employees will have little legal recourse when given a reference they do not like.
If you’d like to chat about references or the other issues that can arise when employees leave, contact us!