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Some employers are wary about providing references for former
employees, fearing a defamation lawsuit. However, a recent decision
of the Divisional Court suggests that negative references that are
substantially true and provided without malice may not be
defamatory.
In the trial decision of Papp v Stokes et al, 2017 ONSC 2357, the
plaintiff brought a claim for wrongful dismissal and defamation
against his former employer. The plaintiff's employment was
terminated on December 19, 2013 and the next day, his supervisor
agreed to provide a reference for future job applications. However,
between December 2013 and May 2014, the supervisor learned negative
information about the plaintiff – in particular, that he did
not work effectively with others.
In May 2014, the plaintiff applied for a new position and put
the supervisor down as a reference. When he was contacted by the
plaintiff's prospective employer to answer a questionnaire, the
supervisor indicated that the organization had been displeased with
the plaintiff's quality of work and that he did not work
effectively in teams. The plaintiff's job application was
rejected.
The trial judge concluded that the supervisor's statements
were defamatory because the three elements necessary to prove
defamation were established: (1) the statements would tend to lower
the plaintiff's reputation in the eyes of a reasonable person;
(2) the words in fact referred to the plaintiff; and (3) the words
were published, meaning that they were communicated to at least one
person other than the plaintiff. However, the employer successfully
raised defences to the defamation claim.
First, truth is a defence to defamation, and the trial judge
concluded on the evidence that the statements were substantially
true. Second, the trial judge held that the statements were
protected by qualified privilege. Qualified privilege is a defence
to defamation that applies in limited circumstances to rebut the
presumption that apparently defamatory words were spoken with
malice. Qualified privilege is only available to a defendant if the
words were spoken without malice – a condition that the trial
judge considered satisfied in the circumstances.
In March 2018, the Divisional Court upheld the trial decision on
appeal.1
The primary takeaway for employers is that providing honest
references should not attract liability for defamation – so
long as the reference is substantially true and is provided without
any malicious intent.
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.
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