• First Reference
  • About us
  • Contact us
  • Blog Signup 📨

First Reference Talks

Discussions on Human Resources, Employment Law, Payroll and Internal Controls

  • Home
  • About
  • Archives
  • Resources
  • Buy Policies
You are here: Home / Business / Defamation and reference checks

By Occasional Contributors | 2 Minutes Read December 11, 2017

Defamation and reference checks

reference checksReference checks can put former employers in an awkward position. Employers want to tell the truth but may be concerned about the potential legal consequences of providing a bad reference. However, a recent case out of Ontario suggests that employers should not be afraid to tell the truth when asked to provide a reference for a former employee.
In Papp v. Stokes et. al., 2017 ONSC 2357, Mr. Papp’s employment was terminated without cause after 2.5 years of employment. Following his termination, Mr. Papp asked the President of his former employer, Mr. Stokes, to be a reference for him. Mr. Stokes agreed. Mr. Papp started looking for new employment and was advised by a potential new employer that he was its number one candidate subject to a successful reference check. The prospective employer contacted Mr. Stokes who informed the potential employer that there was “no way” he would re-hire Mr. Papp, he was “not that pleased” with the quality of Mr. Papp’s work, that Mr. Papp “has a chip” on his shoulder, and that Mr. Papp was let go because of performance and attitude issues. Mr. Papp was subsequently advised by the prospective employer that he would not be offered the job because of the reference check. Mr. Papp sued Mr. Stokes and his former employer for, amongst other things, defamation.
The Court disagreed with Mr. Papp’s argument that he had been defamed, finding that Mr. Stokes characterization was protected by two defences: (1) it was truthful; and (2) it was made in a protected context and thus was protected by qualified privilege.
With respect to the former, truth is a complete defence to defamation. At trial, the former employer called a number of witnesses who confirmed the accuracy of Mr. Papp’s statement. While the statements made by Mr. Stokes hurt Mr. Papp’s reputation, they were true and, as a result, the defamation claim failed.
With respect to qualified privilege, the prospective new employer had an interest in receiving the information and Mr. Stokes had a corresponding duty or interest to communicate the information. As such, the statements were made in a protected context. Given that the statements were not reckless or made in malice, the defamation claim was unsuccessful.
This decision is good news for employers who are apprehensive about providing negative references for former employees. The old adage remains true today: honesty is the best policy. An employer will likely be able to insulate itself from a successful defamation claim where a negative reference is substantially true or so long as it is not malicious or reckless.
By Colin Edstrom, Pushor Mitchell LLP

  • About
  • Latest Posts
Occasional Contributors
In addition to our regular guest bloggers, First Reference Talks blog published by First Reference, provides occasional guest post opportunities from various subject matter experts on the topics of human resources, employment/labour law, internal controls, information technology, not-for-profit, business, privacy, tax, finance and accounting, and accessibility in Canada among others. If you are a subject matter expert and would like to become an occasional blogger, please contact us. If you liked this post, subscribe to First Reference Talks blog to get regular updates.
Latest posts by Occasional Contributors (see all)
  • New qualifying disbursement rules add directed donations anti-avoidance provisions complicate charity regulation - February 6, 2023
  • Ontario Court decision is first donor advised fund case and provides some certainty about DAFs - January 31, 2023
  • Corporations Canada and new transparency about federal non-profit corporations under the CNCA and new fees for certain documents - December 21, 2022

Article by Occasional Contributors / Business / defamation, employee relations, employment, employment law, hiring, Human Resources, interviews, Reference checks

Share with a friend or colleague

Get the Latest Posts in your Inbox for Free!

Electronic monitoring

About Occasional Contributors

In addition to our regular guest bloggers, First Reference Talks blog published by First Reference, provides occasional guest post opportunities from various subject matter experts on the topics of human resources, employment/labour law, internal controls, information technology, not-for-profit, business, privacy, tax, finance and accounting, and accessibility in Canada among others. If you are a subject matter expert and would like to become an occasional blogger, please contact us. If you liked this post, subscribe to First Reference Talks blog to get regular updates.

Footer

About us

Established in 1995, First Reference is the leading publisher of up to date, practical and authoritative HR compliance and policy databases that are essential to ensure organizations meet their due diligence and duty of care requirements.

First Reference Talks

  • Home
  • About
  • Archives
  • Resources
  • Buy Policies

Main Menu

  • About First Reference
  • Resources
  • Contact us
  • 1 800 750 8175

Stay Connected

  • Facebook
  • LinkedIn
  • Twitter
  • YouTube

We welcome your comments on our blog articles. However, we do not respond to specific legal questions in this space.
We do not provide any form of legal advice or legal opinion. Please consult a lawyer in your jurisdiction or try one of our products.


Copyright © 2009 - 2023 · First Reference Inc. · All Rights Reserved
Legal and Copyright Notices · Publisher's Disclaimer · Privacy Policy · Accessibility Policy