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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.

[1] Papp v Stokes, 2018 ONSC 1598 (Div Ct).

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