In Lawetz v. Wigboldus, 2024 BCSC 1867, the British Columbia Supreme Court (the “Court”) reaffirmed that, in the context of an employment reference check, an individual who provides a negative reference about a former employee to another prospective employer is generally protected from legal action, subject to certain exceptions.

Background

In this case, the plaintiff sued the defendant, his former supervisor, claiming that the defendant made defamatory statements about him to another individual with whom he was interviewing for a job. The defendant was the other individual’s previous supervisor and mentor from a different workplace. The defendant was also not aware that the plaintiff was interviewing for positions until he was contacted by the other individual.

The plaintiff argued that the defendant maliciously made certain defamatory statements to cause serious injury to the plaintiff’s reputation. The plaintiff also argued that the defendant’s statements were made recklessly and willfully without regard for his reputation. The plaintiff, however, acknowledged that there had been no impact on his reputation as a result of the defendant’s statements to the other individual.

In response, the defendant indicated that he gave the plaintiff a negative job reference because his statements were based on facts that he knew to be true or, on his reasonably held opinion, based on his experience as the plaintiff’s previous direct supervisor. The defendant also claimed his statements were protected by qualified privilege and there was no evidence of malice.

Issues

The Court sought to determine:

• whether the defendant’s statements were defamatory;
• whether those statements were covered by the defence of qualified privilege;
• whether the defence of qualified privilege was defeated by the presumption of malice; and
• whether the defence of justification applied.

Findings

The Court found that some of the defendant’s statements were prima facie (in other words, on their face) defamatory. However, as his statements were made in the context of an employment reference or a reference check, the Court considered that the defendant was protected by the defence of qualified privilege.

In other words, individuals who provide negative employment references are generally not liable for defamation because the person making the statement has an interest or a type of duty (i.e., legal, social, moral, or personal duty) to convey the information at issue to another person, and that the prospective employer has a corresponding interest or duty to receive it, unless the presumption of malice applies.

The Court also found that there was a complete lack of evidence regarding any malice on the defendant’s part. Accordingly, the defence of qualified privilege over the defendant’s statements was still applicable. Interestingly, the Court noted the only actual evidence of malice was demonstrated by the plaintiff when he sent rude messages to the defendant and complained to the defendant’s current employer. The Court also highlighted that the defendant was justified in making his statements about the plaintiff to the other individual and dismissed the plaintiff’s claims against the defendant.

Key Takeaways

This case reaffirms for employers that, if their reference statements are honestly held views and are not motivated by malice or made out of spite or ill will or for an ulterior or indirect purpose, a negative reference about former or current employees to prospective employers should be protected from liability for defamation. As always, employers should still take care when providing candid, without malice, references about employees.

This case is also a reminder for employees and employers that reference checks are not necessarily limited to formal reference checks and can occur on an informal basis. Even if an employer’s statement is found on its face to be defamatory, an employer may still be protected by the defence of qualified privilege and justification depending on the facts of the case.

If you have any further questions about employee defamation or any other workplace law needs, please reach out to Tiffany Lee at [email protected]