Many employers are asked to provide references for former employees. As a legal matter, the general rule of law in writing the reference, as in all things, is to be honest and act in good faith.

A reference can sometimes be problematic because in essence one is asked to act on behalf of two parties, one of which may be unknown. Many employers quite understandably feel a desire to assist the person who is now looking for employment, but there is also an obligation to provide an honest assessment of the person’s strengths and weaknesses for any potential new employer.

This balance was put to the legal test in the case of Kanak vs. Riggin.

On January 17, 2019, the Supreme Court of Canada denied leave to appeal in the case, upholding a 2018 Ontario Court of Appeal decision and the 2017 trial judge’s decision which affords employers the ability to “give a job reference with candour as to the strengths and weaknesses of an employee”.

Kanak v. Riggin suit for Defamation

Ms. Kanak, a former employee of Mr. Riggin, sued Mr. Riggin in 2017 for defamation, pleading that she lost the opportunity for a new job because Mr. Riggin’s reference (a positive reference being a prerequisite for the new position) contained unflattering statements about her that she alleged were motivated by malice, spite and a desire for revenge.

Mr Riggin had written in the reference provided to the new employer that:

• There was a lot of conflict between Ms. Kanak, her supervisor and other employees;
• Ms. Kanak did not take directions well;
• Ms. Kanak was narrowly-focused;
• Ms. Kanak did not handle stress well; and
• He would not re-hire her.

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Mr. Riggin denied being motivated by malice. Malice is a key component in the finding of defamation, but liability for defamation can arise only where the statements are malicious AND false. 

One of the complicating factors in the case was that contrary to what was written in the reference, Ms. Kanak had consistently received positive performance reviews and merit-based pay increases during her employment working under Mr. Riggin. She had been laid off, along with other employees, due to the sale of the business and through no fault of her own.

The 2017 Trial Court Decision

Establishing motivation for written words is always a difficult thing to prove. Turning to the written words themselves, the legal test for defamation (along with the words being false) requires that all of the following be established:

• That the words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
• That the words in fact referred to the plaintiff; and
• That the words were published, meaning that they were communicated to at least one person other than the plaintiff.

Clearly these three components are all established in the case of Kanak v. Riggin. The question is the truth of the words and the intent of Mr. Riggin.

The trial judge’s decision found that Mr. Riggin’s statements about Ms. Kanak on their face didamount to defamation. However, the judge also found that ‘qualified privilege’ (protection from a defamation claim where the person has an obligation to respond, such as a request for a reference) applied as a defence, writing:

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.

What this means for you

As I stated earlier, the law requires that people act with honesty and in good faith in what they say about others.

In addition to Mr. Riggin’s position that his actions were honest and made in good faith not being disproved at trial, the important part of the decision is in the trial judge’s decision regarding qualified privilege.

With the upholding by the Supreme Court of Canada of the Court of Appeal’s decision, employers clearly have the ability “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.”