Honestly given work reference immune from defamation lawsuit, court rules

TORONTO — A woman who sued her former supervisor over a bad reference that cost her a new job lost her bid on Tuesday to overturn a decision throwing out her defamation claim.

In its ruling, the Ontario Court of Appeal found no reason to interfere with a judge’s finding that the supervisor’s statements were defamatory but nevertheless protected from the lawsuit.

“The statements made by the respondent were defamatory but, given that they were made in the context of providing an employment reference, they were subject to a defence of qualified privilege,” the Appeal Court said. “The trial judge also concluded that the plaintiff had failed to prove malice in the making of the statements, so the defence of qualified privilege was not defeated.”

The case arose when a prospective employer contacted Darryl Riggin about Tracey Kanak. In response to the inquiry, Riggin, who had hired Kanak at Atomic Energy of Canada Limited, made several negative comments about her, according to court records.

During a five-day trial in Superior Court, Riggin admitted to telling Kanak’s prospective employer in 2013 that she did not take direction well, had been in a lot of conflict with others, and didn’t handle stress well. As a result of the conversation, the prospective employer withdrew its job offer to Kanak and she sued Riggin, court records show.

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Justice Lucy McSweeney ultimately concluded that Riggin’s words were in fact defamatory.

“Difficulties in getting along with people, in coping with stress, and in taking directions are not positive descriptors of workplace behaviour,” McSweeney said in her decision. “Put another way, all are generally considered to be undesirable characteristics in an employee.”

In his defence, Riggin argued his remarks were made as part of an employment reference and therefore entitled to what is known as qualified privilege — essentially immunity from a defamation action. The underlying idea is that an employer must be able to give an honest and candid job reference without fear of being sued. Otherwise, the court found, such references could be rendered useless or misleading.

The judge found no evidence that Riggin was motivated by malice toward his former employee — which would have undone the privilege his reference enjoyed.

“In giving his reference about Ms. Kanak, I find as fact that Mr. Riggin spoke honestly and described what he believed to be the truth,” McSweeney said. “He was neither dishonest nor reckless in doing so.”

McSweeney also rejected Kanak’s arguments that qualified privilege did not apply because she was not working with Riggin at the time he gave the reference.

In upholding the lower court ruling, the Appeal Court said McSweeney had given careful and detailed reasons for her conclusions.

“There is no error in the legal principles applied by the trial judge,” the higher court said. “There is no basis for this court to interfere with those findings.”

Colin Perkel, The Canadian Press