Jun 5, 2017

Negative employee reference given honestly and in good faith does not constitute defamation, Ontario court finds

Papp v Stokes et al, 2017 ONSC 2357 (CanLII)

In Papp v. Stokes et al, 2017 ONSC 2357, plaintiff Adam Papp was terminated without cause after working for Stokes Economic Consulting (“Stokes”) for approximately two years and eight months. Shortly after being informed of his termination, Mr. Papp emailed the president of Stokes, Dr. Stokes, to ask if he could put him down as a reference. In his email, Mr. Papp listed the type of work he had done at Stokes, which he would be including in his cover letter, and asked Dr. Stokes if he had any comments. Dr. Stokes replied with “That is okay”.

After several months of job searching, Mr. Papp was informed that he was the first ranked candidate for a position with a prospective employer and that Mr. Papp’s references would be checked before an official offer was made. Mr. Papp sent an email to Dr. Stokes to let him know that he would be contacted shortly. When Dr. Stokes was contacted by the prospective employer, Dr. Stokes was asked a series of pre-selected questions. Dr. Stokes’ answers to the questions established that Mr. Papp had work performance and attitude issues and did not get along well with his co-workers. Dr. Stokes also indicated that he would not re-hire Mr. Papp if given the opportunity to do so. That same day, the prospective employer contacted Mr. Papp to tell him that he would not be offered the position.

Mr. Papp subsequently brought a claim against Stokes for wrongful dismissal, where he sought: (a) $65,000 in damages for wrongful dismissal; (b) $500,000 in damages for defamation; (c) $200,000 in punitive, exemplary and aggravated damages; and (d) $30,000 in damages for intentional infliction of mental suffering.

How to prove and defend against defamation

In a defamation action, the plaintiff is required to prove the following on a balance of probabilities:

  1. That the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
  2. That the words in fact referred to the plaintiff; and
  3. That the words were published, meaning that they were communicated to at least one other person other than the plaintiff.

In Papp v. Stokes, the court found that the words said by Dr. Stokes were clearly defamatory. The court next turned to whether one of the following defences applied: the defence of justification (the statement was substantially true) or the defence of qualified privilege (the statement was made in a protected context – in this case, during a reference check). Where the defence of qualified privilege is raised, the onus rests on the plaintiff to show that there was malice.

Based on the testimony of several witnesses, the court was satisfied on a balance of probabilities that what Dr. Stokes said about Mr. Papp was substantially true. In addition, the court found that the defence of qualified privilege applied. The court found that Dr. Stokes genuinely believed what he said about Mr. Papp. Further, Dr. Stokes did not act recklessly – where Dr. Stokes was told things about Mr. Papp from others, he did not take this information at face value; rather, Dr. Stokes took steps to verify the second-hand information.

Ultimately, the court awarded Mr. Papp with just over $17,000 in damages for his wrongful dismissal, but the court did not award anything more.

Takeaways for employers

While many employers now opt to simply confirm when a past employee worked for them, the court’s decision in Papp v. Stokes provides important takeaways for employers who provide more substantive job references. Where it is an employer’s policy to provide references for past employees, the following best practices should be considered:

  • ensure that the information pertaining to the individual is true and provides an objective justification for the reference;
  • the referee should take steps to verify any information pertaining to the individual that is not first-hand knowledge; and
  • ensure that the reference is being provided in good faith and is not being provided by someone who could be acting with malice.