co-workers. The former employer also mentioned that they were
not pleased with the quality of Papp’s work and that if given the
opportunity, they would not re-hire him.
Not surprisingly, the prospective employer advised Papp that
he would not be offered the position. Subsequently, Papp sued his
former employer and former boss for defamation and wrongful
In Papp, the court applied a longstanding test, which requires
that an employee must establish three things in order to prove
defamation: 1) the words were defamatory; (2) the words re-ferred
to the employee; and (3) the words were published,
meaning that they were communicated to at least one person
other than the employee. The employee is not required to show
that the employer intended to do harm, or even that the em-ployer
was careless. However, once an employee establishes these
three elements, there are generally two defences available to the
employer: (1) the defence of justification, which requires that the
employer must prove that the statements were substantially true;
or (2) the principle of qualified privilege, which refers to instances
where statements made in certain contexts are protected, unless
the defendant acted with malice. In Papp, the Ontario Superior
Court of Justice confirmed that in this case, the comments were
protected under the notion of qualified privilege. It also deter-mined
that justification applied.
Similarly, on May 18, 2017, the Ontario Superior Court of
Justice in Kanak v. Riggin, 2017 ONSC 2837 (CanLII) again ad-dressed
defamation allegations of an employee who was unhappy
with the former employer’s reference. The presiding judge found
that the comments were protected under the principle of quali-fied
privilege because they were made in the context of a reference
check. The court, however, confirmed that the protection of qual-ified
privilege could be lost if the employer’s comments were
primarily motivated by malice. Malice includes spite or ill will;
any indirect motive or ulterior purpose which conflicts with the
purpose of providing a reference; and speaking dishonestly or in
knowing or reckless disregard for the truth.
While these cases confirm that the law provides an employer
with some protection, it is extremely important to exercise caution
when providing a reference. Here are some tips to help you navi-gate
the troubled waters:
1. Implement a company-wide policy regarding references.
This policy should explicitly state that only human
resources professionals may provide references for past or
present employees. The policy should require managers or
supervisors to refer all requests for references to HR.
2. The employer should proceed with caution when responding
to requests for references from former employees who have
been terminated for cause. If the employer asserted cause
at the time of the termination, then a positive reference
may lead to possible contradictions and weaken the
3. A recommendation through social media (such as LinkedIn)
should be considered to be the same as an employment
reference and thus, should only be provided by HR
representatives in accordance with company policy.
4. References should always be fact driven, accurate, precise
and without malice. References should avoid false flattery or
5. References should only be provided upon receiving signed
consent from the past or present employee.
6. Whenever possible, references should be provided in writing
to avoid any misinterpretations, and to protect the company
against future litigation. n
Ruben R. Goulart and Sreya Roy practice HR law at Bernardi
Human Resource Law LLP.
THE PROTECTION OF
COULD BE LOST IF
14 ❚ JUNE 2017 ❚ HR PROFESSIONAL