Canada: Employer References In The Age Of Privacy

Last Updated: April 8 2013
Article by Glenn D. Tait and Vicki Giles

The law around references given to prospective employers by ex-employers is changing. This paper is an update of what the law is now.

Why do employers give references?

There are a number of reasons for employers to give references for departing employees. Employers want to stay on the good side of a productive employee who is moving to other employment, because that employee may, at some point in the future, come back. Employers may want to reward an employee who has done good work. Employers may give a reference because it is the "right thing" to do.

There may be less altruistic reasons. An employer may provide a glowing reference for a less than productive employees to assist in getting rid of a problem employee or to allow him/her to mitigate a potential damage claim. Occasionally, a reference may be part of a termination agreement.

Why do employers look for references?

Most prudent employers would not hire someone without checking with prior employers. The best predictor of future performance is past performance. The employer wants to know the track record of the employee, and not only about their competency, but also about their punctuality, personality, and reliability.

Risks of giving - and not giving – references

Should an employer give a reference? There is no positive obligation on an employer to provide a reference for an ex-employee. On the other hand, the failure of an employer to give a reference has been found to be a factor courts will consider when determining the period of reasonable notice in a wrongful dismissal case. The lack of a reference may mean a longer period of notice is awarded, although that factor may not be articulated by the Court.

In the past, failing to give a reference has also been a basis for awarding additional damages. In light of the Keays decision of the Supreme Court of Canada from 2008, this may still serve as grounds for additional damages, although an ex-employee will have to prove that the failure to give a reference directly resulted in additional damages.

There are also risks in giving references. Whatever reference is given, and however it is given, it must be truthful. There have been cases where an employer has been sued for giving a false reference. There have also been cases where writers of 'bad' references were found to have defamed the person for whom the reference was written.

How Privacy legislation affects the writing of references

In Alberta, private sector employers are free to provide and give references without obtaining consent of the employee in question. That said, employers are still limited to only providing (or soliciting) information which is directly related to the employment relationship, and which is reasonable for the purposes of determining eligibility for employment.

For employers in the public sector, or federally regulated employers (including most employers in the three northern territories), the rules with respect to references are different. Generally, consent is required from the employee before providing or seeking a reference. As with private sector employers, even when an employee has consented to an employer providing or seeking a reference, the shared information should be limited to information directly related to the employment relationship.

This difference between private and public/federally regulated employers sometimes affects the ability of an employer in the private sector to obtain a reference from a prospective employee's prior employer. As such, it is a good practice to get consent to seek references from all prospective employees during the application process. That way, employers will not need to take time to later seek consents if they are required.

Privacy legislation may also affect whether a reference is confidential. A reference is personal information of the subject of the reference. If the referee does not specifically identify that the reference is intended to be confidential, it is possible that the employee may be entitled to access any written version or written notes of it. In some circumstances, it is possible that even explicitly confidential references may be available to the employee.

It is important to remember that any personal information which is collected should be destroyed when it is no longer required. As such, you should consider destroying collected reference information once any limitation period for an employee seeking to challenge the refusal to hire has expired.


If an employer is going to give references, it should have a policy, or standardized reference process. A policy helps to ensure consistency. A policy may also help an employer avoid liability in a case where a reference is given by someone not authorized to do so, and which is not in keeping with the employer's policy.

A policy should specify who will give references, and prohibit others from giving any references, whether orally or in writing. The policy should specify what should and should not be included in a reference. First and foremost, references must be accurate. References should be limited to employment-related information – they should not comment on other issues, such as an employee's marital status, age or level of physical or mental fitness unless directly related to work performance.

The policy should also require that copies of references, both written ones and notes of verbal ones, be retained at least until any limitation period for challenge of the hiring process has expired. In the event that an ex-employee challenges a reference, or later requests a copy of the reference that was given, having a written record of what the reference was will be needed. After that, however, it may be prudent to destroy the references.

Employers should also require, as a practice, consent from job applicants to seek out references. This consent may be required to satisfy legal requirements concerning the collection of personal information. That consent, which may be included in a job application form, should also give the applicant the option of allowing the employer to seek references in addition to those that the applicant may list.

Finally, as employees may be able to access personal information obtained through the reference process, all employers should be thoughtful and careful in providing references. Although truthfulness was always important when providing a reference, it is even more important now in the age of access to personal information.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions