When the Truth Hurts, but is also a Defence to Defamation

The Ontario Superior Court of Justice has confirmed that when a former employer tells the truth in an employment reference check, they may be protected from a defamation claim, even if the reference results in a candidate not getting the job.

In Papp v Stokes, 2017 ONSC 2357, the plaintiff applied for a position and was told by the prospective employer that they were the top ranked candidate at the close of the interview process, subject to reference checks. The plaintiff gave the prospective employer the contact information of a former employer for the purpose of a reference check. However, when that former employer was contacted for the reference check, the information provided by the former employer resulted in the plaintiff not being offered the position. The plaintiff then alleged that the reference was defamatory and claimed damages against his former employer.

In its analysis, the Court agreed that the elements of defamation were met by the words used in the reference check: they were likely to lower the plaintiff’s reputation in the eyes of a reasonable person; they referred to the plaintiff; and they were “published”, or communicated to at least one person other than the plaintiff.

The Court then considered the defences of justification and qualified privilege. The Court found that a defence of justification was applicable as the information provided in the reference check was substantially true. The evidence indicated that the plaintiff did not get along well with his co-workers, conveyed a feeling of superiority to them, and did not work well in a team setting.

The Court also held that words communicated during a reference check may fall within the range of qualified privilege, or information made in a protected context. Although the protections for privileged information can be defeated if malicious intent is shown, there was no malice in this situation: the former employer had taken steps to verify what he had been told about the plaintiff’s conduct, and genuinely believed what he said in the reference check was true.

If a former employer has information that may negatively impact a former employee’s current job prospects, they should continue to exercise caution in providing a reference. However, the Court’s decision confirms that the truth matters in employment reference checks. When a job candidate consents to a reference check from a former employer, so long as the information is not malicious or reckless, that former employer may provide a truthful reference without being liable for defamation.

Stefanie Ratjen