General Rules

Claims of defamation are cases of interest as the damages sought are for an intangible harm. Defamation is the generic term for oral and written communication. Slander refers to verbal communication and libel to written words.

Normally to establish such an action, the offended party must prove:

1. A communication has been made which would tend to lower the reputation of the plaintiff in the eyes of an objective person;
2. The words in question referred to the plaintiff;
3. These words were published, that is, they were communicated to at least one person other than the offended person.

As a parenthetical aside, where the words were published on a website, such a claim is available and indeed to a greater extent of damages as the publication may well be a continuum.

The damages claimed are “at-large”, that is, there is no need to prove a particular economic loss for cases involving a business career for both slander[1] and libel. However, If such a special loss can be proven, then the damage claim will compensate for such a loss. Damages for defamation are also non-taxable.

Special Rule for References

Employment references will typically fit into the classification of certain protected communications which are delivered in the context of what is known as a “qualified privilege”.

This situation arises in the context of a person stating the words by fulfilling a duty, public or private, to a person who has such an interest in receiving the statement. Case law has generally recognized that such employment references fit into this genre.

This allows the employer in this situation to offer a candid and honest view of the employee. It permits a review of the strengths and weaknesses of the person being reviewed. Significantly the issue is not whether a particular failing of the employee is accurate, but rather whether the employer rationally believed it to be as stated.

There are exceptions to this rule, well not so much exceptions as expected qualifiers. The reference must be made in good faith. A person acting maliciously, motivated by spite, would certainly not meet the test of a “good faith” actor. In this circumstance, clearly an action would be available.

Recent Court of Appeal Decision

The law on this subject was recently confirmed, not shockingly, by the Ontario Court of Appeal,[2] upholding the trial decision[3] which had the plaintiff’s action.

The plaintiff unsuccessfully complained of the comments made by the employer which included the following:

1.  There was a lot of conflict between Ms. Kanak, her supervisor and other employees;
2.   Ms. Kanak did not take directions well;
3.   Ms. Kanak is narrowly-focused;
4.   Ms. Kanak does not handle stress well; and
5.   He [Darryl Riggin] would not re-hire Ms. Kanak.

The employer admitted making the “gist” of the statements but also stated that also certain favourable statements were also made.

The plaintiff’s case failed as the court agreed with the application of the principle of qualified privilege and further that there was no malice proven.

Employers View

This case is illustrative of the wide scope given to an employer to make fair, yet adverse, commentary in good faith. To avoid even the threat of these claims, many employers create a firm policy of “headstone” references of confirming dates of hire and cessation of employment, adding a statement of corporate practice to deny qualitative assessments of past employees. This may be overkill, but the practice continues.

Employees Take Note

An agreed reference letter is often sought as a term of a settlement agreement. The advantage to this, apart from knowing what will be said, is that a departure from this covenant is that the claim is no longer in defamation with the qualified privilege defence, but rather a breach of contract. The trick with a breach of contract claim is that damages are no longer “at-large” but must be proven.

The real issue, however, is not in legal stick handling, but rather in getting an important positive reference and getting back to the state of employment.

Get Advice and Know Your Rights

Whether you be employer or employee, this question of references and defamation is important for many reasons. Employers want to avoid law suits and employees want to get on with their lives. To this end, it is fundamental to know the law and your rights and remedies. For advice on this issue from either side, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

[1] Klein v Kaip

[2] Kanak v Riggin OCA

[3] Kanak v Riggin trial