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.