Canada: Court Of Appeal Upholds Finding That Employment References By Prior Employers Are Protected From Defamation Lawsuits Unless Maliciously Motivated

Last Updated: April 23 2018
Article by Shakaira John

The Ontario Court of Appeal recently affirmed the Superior Court’s decision in Kanak v. Riggin that statements made in an employment reference are protected by qualified privilege, regardless of whether the reference was provided by a current or previous employer. As such, defamatory statements made in the context of an employment reference cannot ground liability for defamation unless it is proven that they were made maliciously.

Background: The Kanak decision arises from a typical hiring process practice: the reference check. The Plaintiff, Tracey Kanak (“Kanak”), worked for about five years as a Senior Cost Control Analyst with Atomic Energy of Canada Limited (“AECL”). The Defendant, Darryl Riggin (“Riggin”), was the Plaintiff’s manager until she was laid off in 2011.

Years later, Kanak accepted an offer of employment for a financial analyst position at Bruce Power that was conditional on positive reference checks. After conducting reference interviews, Bruce Power revoked its conditional offer of employment on the basis that Kanak had failed to meet the conditions of employment, later advising that its revocation of the offer was based on the negative employment reference it had received from Riggin.

Kanak sued Riggin for defamation, later adding alternative claims in contract and tort based on the same allegations as the original defamation claim. The trial judge found that Riggin made the following four of five statements alleged by Kanak:

  • There was a lot of conflict between Kanak, her supervisor and other employees;
  • Kanak did not take directions well;
  • Kanak does not handle stress well; and
  • He (Riggin) would not re-hire Kanak in a project controls position, but would hire her in an autonomous financial position.

Kanak’s claim was dismissed in its entirety. On appeal, the Court found no error and no basis to interfere with the trial judge’s findings.

Proving Defamation: The test for defamation requires the Plaintiff to establish three criteria:

  1. That the impugned words were defamatory, in the sense that they would tend to lower the Plaintiff’s reputation in the eyes of a reasonable person;
  2. That the words in fact referred to the Plaintiff; and
  3. That the words were published, meaning that they were communicated to at least one person other than the plaintiff.

The trial judge ruled that the Plaintiff had established each of the three criteria and concluded that the words spoken by Riggin were defamatory of Kanak, as they described what are generally considered to be undesirable characteristics in an employee.

Once a plaintiff establishes that the statements at issue were defamatory, the onus shifts to the defendant to establish a defence. There are a number of defences available to claims of defamation, including justification (that the statements were true) and privilege (the circumstances in which the statements were made are protected).

In the Kanak case, the defendant did not plead the defence of justification, only qualified privilege.

Defamatory, but Protected: The trial judge agreed with the Defendant’s position that qualified privilege applies to statements made as part of an employment reference, emphasizing the social policy that “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”.

The trial judge rejected the Plaintiff’s argument that qualified privilege could not apply because she was not working with Riggin at the time the reference was given. If qualified privilege could only apply to current employers giving references, prospective employers could only rely on candid references from a candidate’s current employer, notwithstanding that the candidate has a history of successive employments. Such a finding would prevent all but one of an applicant’s previous employers from having the protection of privilege necessary to give a full and candid reference.

A plaintiff can defeat the protection of qualified privilege by proving that the dominant motive for publishing the defamatory remarks was actual or express malice, which includes spite or ill will, indirect motives or ulterior purposes that conflict with the occasion, and speaking dishonestly, or in knowing or reckless disregard for the truth.

Malice may be intrinsic to the words spoken, or proven by extrinsic evidence. Because the impugned words on their own were not inflammatory enough for malice to be inferred, Kanak sought to prove malice through extrinsic evidence of occasions during her employment at AECL that she alleged provided motivation for Riggin to be vindictive towards her. The trial judge, however, was not convinced by Kanak’s evidence and found that Riggin had described what he believed to be the truth in his reference.

Plaintiffs Cannot Dress Up Defamation as Other Claims: The trial judge made a further finding that the Plaintiff’s alternative causes of action were simply “dressed up” pleadings of defamation rather than separate claims: each of these claims were based on exactly the same allegations as the defamation. As such, the alternative claims were not separately actionable.

The Takeaway: Kanak demonstrates that comments made in the context of a job reference are protected by qualified privilege, even if they are defamatory, unless it is proven that they were motivated by malice. This protection applies to current as well as prior employers of an applicant.

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.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must 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