References are Protected Under the Defence of Qualified Privilege and Absent Malice cannot Give Rise to Damages
May 15, 2017
The decision of The Honourable Mr. Justice Miller, of the Ontario Superior Court of Justice, released April 18, 2017, considered a claim for defamation by an employee in relation to a reference given by his former employer to a potential future employer. This could have been the first case in which an employer was found liable for defamation in supplying a negative reference. It was not. The Plaintiff sought $500,000 in damages. The employer was found not liable.
The former employer had completed a written questionnaire at the request of the potential new employer which, amongst other things, stated they were ‘not that pleased’ with the employee’s work, he did not get along well in a team setting or with co-workers and they would not rehire him. The reference provided resulted in the employee not being offered the position.
The Court held the statements met the test for defamation, namely:
1. the words would lower the Plaintiff’s reputation in the eyes of a reasonable person;
2. the words referred to the Plaintiff; and,
3. the words were communicated to at least one person other than the Plaintiff.
The former employer would be presumed liable unless able to establish either the defence of 1) justification, meaning it was substantially true, or 2) qualified privilege, meaning it was made without malice, in circumstances in which disclosure is in the interests of societal convenience and welfare.
The Court held that the former employer had adduced sufficient evidence to establish the statements were substantially true; in any event, it also held works published in the context of a reference check fall within the range of qualified privilege and, absent malice, constituted a defence to the defamation claim.
No malice was found. It was concluded the employer believed the responses to be true and made reasonable inquiries in order to respond.
The defamation claim was therefore dismissed.
This decision, the first of its kind in Canada, should offer comfort to employers in providing references that liability for defamation is unlikely unless the employer is acting maliciously in providing the reference.
Papp v. Stokes, et al, 2017 ONSC 2357 (OntSCJ) Miller J.