Author: Ryan Carroll, LAW 365 Summer Student
When assessing the candidacy of a potential employee, references from past employers can be a useful tool. Employers should be wary however, of the issues that can be caused from relying on problematic references. Qualified privilege falls upon statements made in particular circumstances. One situation concerns an employee reference to a potential employer. The benefit of qualified privilege is that it can protect the maker of the statement from a defamation lawsuit.
There are limits to that protection and former employers would be wise to refrain from sensationalizing the references they provide. The Supreme Court of Canada in the Botiuk v Toronto Free Press Publications Ltd. decision noted that qualified privilege can be defeated in two ways. It can be defeated if the “dominant motive” of the information provided contains “actual or express malice”. Malice could be proven by indicating that the individual making the statement knew it was false or was “reckless in that regard”. Privilege can also be defeated if the information communicated does not reasonably concern the “purposes of the occasion”.
It would be wise for employers to be more careful of the references they are relying upon. The most cost-effective way to ensure that references from former employers do not cause a negative impact is to be more diligent about its content. Doing so can prevent future litigation.
Former employers should be conscious of the references they provide. Sensationalizing or falsifying the information they disclose could serve as the grounds for a defamation lawsuit. Being honest with the detail you provide in your reference can serve as protection against a defamation claim.
If you believe you have relied on a false employee reference to your detriment or are experiencing another employment issue, feel free to book an appointment with LAW 365.
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