Bill 66 Passes

Bill 66 has passed! Further to our past post on Bill 66 the oh so neutrally named Restoring Ontario’s Competitiveness Act received Royal Assent in the Ontario legislature on April 3, 2019.

This Bill ushers in further changes to the Ontario workplace statutory landscape, with amendments to the Employment Standards Act, 2000 (ESA), the Labour Relations Act, 1995 (LRA) and the Pension Benefits Act (PBA). The ESA and PBA changes are now in effect. The majority of the LRA changes will come into effect on a day to be named by proclamation of the Lieutenant Governor.

Changes to the ESA

The changes to the ESA came into force on April 3, 2019, and have a practical impact on workplaces where overtime is common and where employees work more than the ESA maximum weekly hours of work – 48 hours.

Bill 66 amends the ESA to remove the requirement that employers obtain the approval from the Director of Employment Standards regarding agreements with employees or bargaining units on overtime and excess weekly hours of work.

Overtime Averaging – As was previously the case, employers are allowed to enter into agreements to average the hours an employee works over a specified number of weeks in order to limit the employee’s entitlement to overtime. Prior to Bill 66, approval from the Director of Employment Standards was required. Approval is no longer required, though there are new requirements:

  • Averaging can occur over a maximum of 4 weeks
  • The averaging agreement must include a start date and an end date

Excess Weekly Hours of Work – The maximum weekly hours of work remains the same, 48. Approval was previously required to have employees enter into agreements to exceed the maximum. A written agreement between the employee or bargaining unit and the employer is still required to exceed the maximum, but approval from the Director of Employment Standards is not.

ESA Poster Requirement – Previous to Bill 66, the ESA required that the ESA poster, which is a one-page graphic about employment rights be posted in a conspicuous place in the workplace. Bill 66 has removed this requirement. Employers are still required to provide employees with a copy of the poster upon hire.

Changes to the LRA

Bill 66 amends the LRA to expand the definition of “non-construction employers” to include a wide number of public sector organizations such as municipalities, hospitals, universities and various administrators. The LRA has specific provisions for the construction industry and this change will impact whom those provisions apply to. This provision is not yet in effect, however, a provision allowing some entities to “opt-out” of this change is now in effect and these entities now have three months to file an “opt-out” election.

Changes to the PBA

The Bill 66 amendments to the PBA impact the process by which private sector employers convert single-employer pension plans to jointly sponsored pension plans.

Takeaways

We expect the changes to the ESA to have the biggest impact on day to day operations of private workplaces. If your workplace has averaging agreements or excess hours agreements in place these changes may impact you. Get in touch to talk about the specifics of your situation, we’re here to help!  

Alternative Dispute Resolution in Employment Law – Part 2

Last week we discussed traditional ways of resolving employment law disputes. This week we will dig into the alternative!

Alternative Dispute Resolution (ADR)

Given the limitations of formal dispute resolution processes (for more on this check out our post from last week), the use of ADR has increased in significance.   ADR involves the implementation of a range of techniques – such as negotiation, use of technology and risk mitigation strategies – to resolve disputes or avoid them entirely.  

Workplace disputes can be emotionally charged as they often involve the messy dynamics of human relationships.  Still, most claims will have a monetary value attached to them. A key part of the dispute resolution strategy, for both employees and employers, should involve getting the best deal possible.  As informational asymmetries decrease with constantly evolving legal research technologies, parties should increasingly have an objective assessment of what a claim is worth. This is why our lawyers at SpringLaw use artificial intelligence, for example, to determine reasonable notice periods with an unprecedented level of accuracy.  The closer we can get both sides to agree to the value of the claim, the more quickly a dispute can be resolved, with less money spent on lawyers.

While the use of technology and negotiation are powerful tools to resolve disputes, avoiding disputes altogether is always preferable.  Many disputes that we encounter could have been avoided entirely with properly drafted contracts, termination letters or workplace policies.

The Future of Dispute Resolution

We think that negotiation leveraged through technology and dispute avoidance will be increasingly vital dispute resolution tools.  The Lord Chief Justice of England and Wales recently hailed the potential of big data and AI to reduce litigation and promote settlement. Also, check out our past post for some insight into how Ontario judges are pushing lawyers to use technology.  

We also anticipate that technology will increase the accessibility of formal dispute resolution processes for workplace disputes.  The Civil Resolution Tribunal in British Columbia is Canada’s first online tribunal and has been incredibly successful in resolving claims and increasing access to justice.  We expect similar initiatives to come to Ontario before long.

Other examples of online and tech-driven dispute resolution mechanisms include:

  • Online Dispute Resolution (ODR), which is, in essence, the implementation of ADR techniques via technology.  With the proliferation of the internet and e-commerce in the 1990’s, ODR emerged as an alternative to traditional courtroom processes for resolving consumer disputes.  Large corporations such as eBay and PayPal have since effectively implemented ODR as a mechanism for dispensing with high volumes of consumer disputes.
  • Innovative ODR platforms have recently emerged to resolve a wider range of legal disputes. BidSettle is a Quebec based startup that offers an online negotiation platform for the resolution of monetary disputes across Canada.  By removing the need for lawyers (and their fees) in the negotiation process, the platform allows parties to make confidential offers and counteroffers free of charge in a less adversarial way. If consensus is achieved, both parties pay 2.5% of the cost of the settlement, and the platform will create binding settlement agreements on behalf of the parties.
  • South of the border, Sagewise is developing a dispute resolution protocol for smart contracts, which includes automated bots for routine disputes, to a “crowd jury” for more nuanced disputes.

Resolving and avoiding workplace dispute requires a solid understanding of the law, workplace dynamics, and goals of the parties involved, along with an arsenal of progressive dispute resolution strategies.  At SpringLaw, we are happy to leverage all of these tools to help you best resolve your workplace issues. Get in touch if you’d like to chat!

Alternative Dispute Resolution in Employment Law – Part 1

The practice of law has changed.  The days of the gun-slinging Harvey Specter-esque litigator, sipping single malt scotch whiskey and ready to obliterate his opponent at a moment’s notice, has given way to a new breed of tech-savvy, collaborative and cost-conscious lawyers who are more concerned with serving their clients’ personal and business needs than delivering memorable zingers in the courtroom.  

There is still a time and a place for the Harvey Specters.  Certain conflicts are unresolvable and require the full arsenal of “bet the company” legal mercenaries.  But business, technology and work culture have evolved. Employment lawyers know that it often is not worth the cost, uncertainty and effort involved to demoralize an adversary in the courtroom.  Working towards collaborative solutions and front-loading the risk of litigation are often in everyone’s best interests. In this post and next week we will explore Alternative Dispute Resolution in Employment law.

First, we’ll take a look at some of the formal ways of resolving workplace disputes.

Formal Resolution of Workplace Disputes

In Ontario, there are currently three main forums for resolving workplace disputes, each serving different purposes and bringing their own set of strengths and weaknesses.

1.  Ministry of Labour (MOL)

The MOL investigates complaints regarding violations under the Employment Standards Act, 2000 (ESA) and the Occupational Health and Safety Act and is a free resource for employees who could not otherwise afford a lawyer. The MOL Employment Standards hotline offers information about employment standards and can help employees to understand their ESA rights. Employees can also make employment standards claims through the MOL which will deal with issues related to ESA rights, such as unpaid wages, vacation or overtime. The MOL and employment standards claims only deal with statutory ESA rights, so will not be useful for addressing disputes arising from the contract of employment or other entitlements.

2.  Human Rights Tribunal of Ontario (HRTO)

The HRTO is a free dispute resolution process to address violations under the Ontario Human Rights Code.  While it is a useful forum for employees to address workplace discrimination issues, decision makers are limited in their ability to award punitive and aggravated damages, unlike a judge in court.

3.  Court

A court action can address violations of any employment law related statute, contractual disputes, or claims for punitive or aggravated damages occurring as a result of an employment relationship.  However, there are filing costs associated with a court action which will often require a lawyer for proper representation and the losing parties can be liable for the winning party’s costs. Perhaps for all these reasons, people have been turning less and less to courts to resolve disputes.

Stay tuned for our post next week in which we will discuss the alternative to these formal dispute resolution forums.

So You’ve Been Fired…Introducing our new e-book!

At SpringLaw one of our goals is to educate people about their legal rights in the workplace and upon termination, but this can be hard to do on a large scale. We want to reach many more people than those who we are able to serve individually. This is one reason why we are so active on our blog and why we have written our new e-book, So you’ve been fired, now what?  

When You Can’t Afford a Lawyer…But You Want to Know if You Have a Case

Let’s face it, lawyers can be expensive! This often feels particularly true for someone who has just lost their job. For some, putting down money for a legal retainer or wracking up a legal bill in order to figure out their rights when they’ve just lost their income source is simply not an option. We get a lot of inquiries every day from people in just this position. Many will decide that they just can’t afford a lawyer and will simply sign off on their termination package, or walk away from their jobs without ever really understanding their legal rights and what they may be leaving on the table. We wrote So you’ve been fired, now what? for these people, with the hopes that this would happen less often.

This book is designed to answer questions and provide information so that those who have been recently fired can educate themselves and figure out if they might have a case worth pursuing. It also provides information about options on what to do, from going to the Human Rights Tribunal, making an Employment Standards Complaint, negotiating directly with a former employer and information about when talking to a lawyer might really be necessary.

So you’ve been fired, now what?

Our ebook will help terminated employees to answer the following types of questions:

  • What are my rights?
  • What do I do now?
  • Should I sign?
  • Did I get enough?
  • Is my employer even allowed to do this?
  • Have I been treated fairly?
  • What about how I was harassed?
  • What about the discrimination I faced?
  • What about that non-compete agreement I signed?
  • What are my entitlements?
  • How can I get paid what I’m owed?

We will also help those who don’t even know what questions to ask.

If you or someone you know has recently lost their job and has some of these questions, then head on over to our page to learn more.

Whose device is it anyway?

Technology continues to blur the lines between our personal and work lives.  How often have you answered a client email on your work laptop, only to receive a follow-up question via text message on your personal phone?  

Many workplaces have adapted to the fluid use of technology and encourage their employees to use their own technology at work through bring your own device (BYOD) policies.

BYOD can provide many benefits to workplaces and employees. It has been shown to improve efficiencies and worker engagement while powering a more innovative, productive and collaborative workforce.  

As the use of mobile devices increases relative to personal computers, and as organizations continue to embrace the benefits of remote working arrangements, we believe that BYOD will continue to trend upwards.

But what are some of the legal risks and best practices surrounding BYOD which organizations should be aware of?

Permitted Uses

Employers should define the acceptable uses of personal devices for work purposes.  An employee’s use of email, instant-messaging and the internet can be a vehicle for inappropriate, discriminatory or harassing behaviour, especially for employees who feel less inhibited using their personal device.  

For example, an employee who exchanges inappropriate images with another employee on their respective personal devices could be engaging in workplace harassment.  As such, employers should be clear about the acceptable uses of workplace technology, regardless of who owns the equipment.

Vicarious Liability and Security

Vicarious liability refers to a concept whereby employers can be held responsible for the negligent actions of an employee, which includes an employee’s use of technology.

What happens when an employee’s personal computer is stolen, yet is flush with highly sensitive client information and which has minimal security preventing access to the computer, company networks and applications?  What about an employee who uses their personal computer to visit questionable websites on their personal time and is then subject to a malware attack which places confidential company information at risk?

Employers should educate employees on the importance of security best practices, such as not storing any work product locally.  Organizational best practices can also include using a password manager like LastPass and using a Virtual Private Network (VPN) to add security and privacy to private and public networks.

BYOD policies should also contemplate the security of confidential information on personal devices for departing employees.  The exit requirements should include a process for deleting data and proprietary information, as well as revoking access to organizational networks and applications.

Overtime

We have previously written about some of the issues surrounding constant connectivity, which can include claims for unpaid overtime to employees who are checking and responding to emails after work hours.  This is especially true for remote workers and workers who use their personal devices at work.  Employers should, therefore, have clear policies about the use of personal devices for work-related activities after hours.

Takeaways

While there may be some logistical hurdles in implementing an effective BYOD policy, we do not think it is something employers should shy away from.  Studies suggest that up to 67% of employees use a personal device at work, whether an organization has a BYOD policy or not.  You might as well embrace the fact that your top performers will check their work email on their brand new iPhone and access your cloud platform from their tablet in a trendy coffee shop on a Sunday afternoon.  

Organizations should therefore proactively devise and manage effective BYOD policies so that both employers and employees can reap the benefits of leveraging technology in the workplace.  

If you need help developing a BYOD policy, we would be glad to assist.

When employees revolt!

Microsoft employees recently made the news protesting the company’s $479 million contract with the U.S. Military to create mixed reality headsets using the HoloLens platform for use in war. Click on the link if you have no clue what we are talking about, but these are basically headsets that blend reality and virtual reality into the wearer’s experience. Anyway, whatever it is Microsoft is working on something for the U.S. Military that, using this technology, “provides increased lethality, mobility, and situational awareness necessary to achieve overmatch against our current and future adversaries.”

Some of the Microsoft engineers tasked with working on this project signed a petition stating that they “refuse to create technology for warfare and oppression” and demanding that Microsoft stop the project. Microsoft has so far not heeded the employees’ demands to stop working with the U.S. Military on this project and it is not expected that they will.  

When employees revolt

When employees are upset about a corporate direction or don’t want to work on a certain project because it conflicts with their own ethical code what happens? Can they just refuse to work? Do their ethical objections need to be accommodated by moving them to another project? Like most answers you’re bound to get from a lawyer, it depends.

Do disgruntled employees need to be accommodated?

Is what the employee is being asked to do within the scope of their contract or job? Any fundamental change to the terms of the employee’s contract or job could constitute a constructive dismissal. This would give the employee the right to make a claim against the employer for wrongful dismissal and notice damages.

Is the employee being asked to do something that is within the scope of their job but that violates their human rights somehow. Perhaps, for example, the work project is somehow contrary to their religious beliefs. In this case, an employer may need to provide the employee with accommodations.

Takeaways

If there are neither human rights nor constructive dismissal concerns an employer probably won’t legally have to kowtow to what more rightfully be seen as their employees’ preferences. If an employee simply refuses to work this may be grounds for a for cause dismissal or frustration of contract.  However, employers who have the capacity to do so may be wise to be sensitive to the preferences of their employees. Millennials, in particular, are known for having strong preferences and for speaking up when they disagree. Knowledge-based employers like Microsoft cannot afford to lose large numbers of talented and skilled people and so would do well to keep them as happy and productive as possible.  

Are you facing an ethical dilemma regarding a project in your workplace? Do you have employees in revolt over new duties? If so we’re here to help!  

Cameras in the workplace: Privacy Law and inadvertently catching your employees in the act

At SpringLaw, we are interested in privacy, technology and how they intersect in the workplace. A recent arbitration decision brought all three together and gives us some insight into how decision makers might treat evidence collected via surreptitious surveillance.

In Vernon Professional Firefighter’s Association, IAFF, Local 1517 and The Corporation of the City of Vernon the employer fire chief installed a security camera in his office. He did so based on a suspicion that someone was surreptitiously accessing confidential information held in a locked filing cabinet in his office. One morning he found the cabinet, which was usually locked, unlocked.

Instead of catching the officer snooper, one weekend the chief’s surveillance camera caught two employees engaging in a sexual act. The employees were terminated and grieved the terminations. The union brought an application to exclude the video. The decision in question addresses whether or not the video evidence was admissible.

Authorized Collection of Personal Information

The firefighters’ union argued that the surveillance camera footage was not admissible as evidence. The union argued that the video surveillance was not an authorized collection of personal information under  British Columbia’s Freedom of Information and Protection of Privacy Act (FIPPA).

British Columbia, for the record, has the most developed privacy law regime in Canada. FIPPA applies to institutions. Ontario has a similar law, also called Freedom of Information and Protection of Privacy Act. Under these laws, collection of personal information (such as video of a sex act) can be collected only for an authorized purpose and generally the person from whom the information is collected must be pre-notified.

The fire chief in this case surreptitiously recorded his office, so the employees did not have notice. However, the arbitration board held that the indirect collection of personal information was necessary, a reasonable exercise of managerial authority and that it had been collected in a reasonable manner. The employer was attempting to catch the snooper. The employer was be permitted to use the video in the termination grievance.

Factors to Consider When Collecting Personal Information

In making the determination that the collection, in this case, was reasonable, the arbitration board considered the following factors. These may be useful for employers wondering about the legality of hidden cameras in the workplace.

  1.  Was there a good reason for the surveillance? In this case, the snooper amounted to the reasons.
  2.   Were efforts made to address the problem in other ways? Installing hidden cameras should usually be a last effort.
  3.   Were there other sources for the same information?
  4.   Do the employees have an expectation of privacy at the time and place of the surveillance? For example, they very likely would if the camera was in their own private office or a washroom.
  5.   What is the scope of personal information collected? For example, does the camera capture information about all employees or only employees about whom the employer has suspicion?
  6.   What is the extent of intrusion into privacy? Is it constant or transitory?
  7.   How serious is the loss of privacy by employees captured by the surveillance? For example, bathroom surveillance would be a very serious loss of privacy.

Takeaways

While this case involved a public body, to whom privacy legislation applies, we can surmise that similar factors would be considered in regards to invasions of employee privacy in other contexts. Employer authority and the need to manage the workplace will always be balanced with the employees’ own privacy interests.

Do you work in a workplace with cameras? Are you an employer contemplating surreptitiously surveilling your employees? Privacy remains a tricky legal area with many potential landmines to step on. Get in touch if you’d like to talk to one of us about it!

The price of workplace harassment

Valentine’s Day has us thinking about romance. In the mind of an employment lawyer, the leap from romance to harassment is a short one, and so that is what our post is about today. Harassment is not a new topic for us. You can read our past posts on sexual harassment, employer obligations regarding harassment and the time we waste on sexual harassment for a primer on the subject.

Today we are going to take a look at what comes after the harassment has been reported, investigated and substantiated. What are the consequences of harassment?

OHSA Obligations

The Ontario Health and Safety Act requires that workplaces have harassment policies and plans in place in order to prevent and address workplace harassment. When harassment is reported or comes to light, either formally or informally, the employer has an obligation to investigate. What that investigation will entail depends on what the complaint consists of. The investigation should be conducted by an independent person. This can, in some cases, be someone internal as long as they were not involved in the harassment situation in any way and as long as they are not somehow under the thumb of either party. In situations where the complaint is complex or involves multiple people, organizations often choose to bring in a truly impartial third-party investigator. The investigation will determine whether or not the allegations of harassment are substantiated.

When a Harassment Allegation is Substantiated

Once the investigation has determined that the allegation of harassment is substantiated, what comes next? The employer will need to determine how to appropriately deal with the harasser. Depending on the situation, this could mean training, an apology, a re-organization of their role or reports. In some serious situations, harassment may warrant a termination with cause.

What About the Victim?

Harassment allegations often surface once the victim of harassment has left the workplace. They may come to the employer’s attention via a demand letter from employee counsel. This raises the question, is harassment worth anything?

The tort of harassment was recognized in the 2017 Ontario Superior Court case Merrifield v. The Attorney General. In this case, Mr. Merrifield was awarded $100,000 in general damages related to the harassment and intentional infliction of mental suffering he experienced at work.

Successfully establishing the tort of harassment requires that the following be proven:

  • The conduct of the defendant towards the plaintiff was outrageous;
  • The defendant intended to cause emotional distress or had a reckless disregard for causing the plaintiff to suffer from emotional distress;
  • The plaintiff suffered from severe or extreme emotional distress; and
  • That the outrageous conduct of the defendant was the actual and proximate cause of the emotional distress.

This legal test for harassment is similar but tougher than that of intentional infliction of mental distress. The conduct must be “outrageous and flagrant” and the mental distress must be visible and provable.

Takeaways

While this is a developing area of law, employers may be vicariously liable for employee on employee harassment. It is essential that employers have a proper workplace harassment program in place. Individual employees may also be liable for their harassing actions in the workplace.

Victims of harassment, that is not related to a Human Rights Code ground can turn to the courts to recover from harassment. However, the bar to recovery is, thus far, very high.

Rise of the machines in the workplace

Here Come the Robots

Is your workplace about to be automated? A recent study by McKinsey & Company suggests that about half of the activities (not jobs) carried out by workers could be automated right now with currently available technologies.  The study assessed 2000 work activities across more than 800 occupations, including mortgage brokers and CEOs.  Those are a lot of activities affecting a wide range of occupations.

Not even lawyers are immune from the rise of the machines!  Researchers have shown that algorithms can significantly outperform human judges in predicting whether an accused person will behave, or flee and/or commit a crime while on bail.  

Does this mean that all workers are on the verge of being replaced by robots? Not yet at least.  But it does mean that in nearly every industry, human workers should get comfortable working alongside machines.  

But what are some legal implications for employers and employees?

They Took Our Jobs!

One of the results of automation of job tasks is the changing nature of the job itself.  In some jobs, the automation of administrative or technical tasks can free up workers to focus on the uniquely human and strategic tasks which are most fundamental to the job itself.  For example, at SpringLaw, our lawyers leverage state of the art AI and predictive analytics to conduct legal research, which frees up time to focus on advising clients and devising file and negotiation strategy.  In this sense, the use of technology has changed some of our day to day tasks, but the essential character and essence of our jobs as lawyers have been enhanced.

On the other hand, consider the job of a school bus driver, whose job tasks include driving a school bus, but also include supervising a large group of children.  Suppose the operation of the school bus becomes fully automated, but a trustworthy adult is still required to supervise the children and ensure they do not interfere with the safe operation of the bus.  In this case, the essential character of the job has arguably been changed from driving a bus to supervising children.

When is Automation Constructive Dismissal?

If an employer does not specifically reserve the right to alter an employee’s essential job duties, an employee could argue that there was a fundamental breach of the employment contract and make a claim for constructive dismissal.  If the new role is beyond, below or so completely unrelated to their current role, an employer may be inadvertently setting an employee up for failure in the name of progress.

Jobs and workplaces evolve and employees should expect the inevitable journey of change in today’s workplace. Employers should expect to have to continuously invest in skills training. If, however, there is a contractual agreement to perform a certain role and that role is fundamentally changed, employers are at risk of a constructive dismissal lawsuit.

The simple (but not easy) solution is to terminate the employee without cause and offer up a reasonable termination package. The problem arises when employers try to prove someone is not performing their role or is now incompetent. The threshold for a “with cause” termination is very high in Canada, and odds are it will be cheaper (and certainly more decent) to offer a package and look for a different skill set.

There will no doubt be a long, messy period between the investments in new software and technology to upgrade the workplace systems,  the skill set misalignment, the discussions about what the role should look like, and then the hard questions asked about what next steps should look like.

Simply automating a task is sometimes not so simple. Employers will need to remain mindful of the impact of tech on people and while we don’t think that should stop progress, we do think there are employment law risks that face employers along the way.

Automation is in full swing and is here to stay.  We are happy and ready to answer all of your questions related to employment law and the implementation of technology in your workplace.  

References: Is honesty the best policy?

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.

Defamation?

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.

Takeaways

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!  

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