Candour in the Context of Employment References: A Review of Kanak v. Riggin, 2018 ONCA 345

Previously printed in the LexisNexis Labour Notes Newsletter.

The Ontario Court of Appeal recently upheld an important lower court finding that employers can be shielded from liability for giving negative employment references.

In 2016, Tracey Kanak, sued her former manager, Darryl Riggin, for defamation after he gave a candid, albeit unfavourable, employment reference:  Kanak v. Riggin, 2016 ONSC 2837.  Ms. Kanak alleged that the unfavourable comments — that she did not take direction well, that she was too narrowly focused, that she did not handle stress well, and that he would not rehire her — were defamatory and had been made out of a desire to exact revenge on her.

Mr. Riggin admitted to making the comments but argued that he was shielded from liability because they were made on “an occasion of qualified privilege” within the context of employment.  He denied being motivated by spite and claimed instead that the comments were an accurate reflection of his perspective and experience of working with her.  He drew attention to the fact that he had highlighted Ms. Kanak’s strengths along with her weaknesses when giving the reference.

Defamation is an interesting tort because it is concerned with the intangible:  reputation and the harm that can be done to a reputation.  To establish defamation, a plaintiff must prove, on a balance of probabilities, the following three things:

1. there was a communication that would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
2. the communication referred to the plaintiff; and,
3. the words were “published”, i.e. they were communicated to at least one person other than the plaintiff.

There are a number of defences that can overcome a claim of defamation, including what was communicated was true or, as established in this case, the statement was made by someone who was fulfilling a private or public duty to someone who had a corresponding interest in receiving the statement.  In other words, the statement was protected by qualified privilege.

The lower court judge conducted a thorough review of the facts, the principles relating to defamation, and the defences available to overcome the claim.   She determined that although the statements made by Mr. Riggin were defamatory, they were indeed made on a “classic occasion of qualified privilege”.  The judge found that an employment reference serves a particularly important function and that:

… 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.

Ms. Kanak unsuccessfully attempted to argue that there should be some temporal constraint on qualified privilege because she was no longer working with Mr. Riggin.  The lower court judge disagreed and stated:

[G]iven that many individuals do not look for new work until they are no longer employed at their previous position, such a finding would in practical terms prevent all but one of an applicant’s previous employers from having the protection of the privilege necessary to give a full and candid reference.

Ms. Kanak’s appeal of the lower court decision was recently dismissed by the Ontario Court of Appeal.  The Court determined that the judge gave careful and detailed reasons for her conclusions based on the facts she found and there was no error in the legal principles she applied.

Employment references are an essential part of the employment process and the courts have underscored that in the absence of malice, even the most negative of references can be protected.

Employer Takeaways

• Employment references will not attract liability provided they have not been given maliciously.
• When providing an employment reference for a former employee, keep your comments fair, accurate and balanced.