Reference Check: A Negative but Honest Reference by a Former Employer may not be Actionable

A reference check is typically the last step in the application process that can make or break an employee’s chances of landing a job. For Adam Papp, his former employer’s honest reference cost him a job with the Government of Yukon.

Case Study

Mr. Papp worked for Stokes Economic Consulting, a private company. After a 2 year tenure with the company, it had to let him go for cost-cutting reasons. Mr. Papp was not terminated for just cause, but his interpersonal difficulties with others in the company impacted the decision to let him go. Nonetheless, Ernest Stokes, the company’s president, agreed to be a reference for him as he sought future employment.

In 2014, Mr. Papp was applying for a new position with the Government of Yukon. When Mr. Stokes was consulted for a reference, he shared his positive opinion of Mr. Papp’s technical skills. However, the Government of Yukon also asked about Mr. Papp’s interpersonal skills and attitude. In response, Mr. Stokes gave his honest opinion of which included that Mr. Papp did not work well with others. When asked if he would rehire him, Mr. Stokes’ response was “no way”.

Suffice it to say, Mr. Papp did not land the job with the Government of Yukon. Shortly thereafter, he sued his former employer, claiming the negative reference was defamatory.


Reference Check: Protected by Justification and Qualified Privilege

The trial was heard in February 2017. In the Ontario Superior Court of Justice’s decision found here, the Court dismissed Mr. Papp’s claim, ruling that Mr. Stokes did not defame Mr. Papp when it provided a negative reference. It determined that even though Mr. Stokes’ comments were defamatory in the sense that they diminished Mr. Papp’s reputation, Mr. Stokes made out two defences:

  • Justification (that the statements were substantially true); and
  • Qualified privilege – that the statements were made in a protected context. The Court determined that “it is clear that words “published” in the context of a reference check fall within the range of qualified privilege”. However, the Court noted that the privilege can be defeated if it is proven that the statements were made maliciously.

Conclusion: It is all about Being Honest in Job References

The Court held that Mr. Stokes genuinely believed his statements about Mr. Papp to be true, and that the comments were based not just on his personal opinion, but the collective impression of the other people in the company. All of this was enough to defeat Mr. Papp’s claims.

This case signals that employers should not exaggerate or bend the truth when providing references for former employees. Of course, an employer still does not have a license to badmouth former employees and sabotage their chances and obtaining new employment. Most importantly, employers must be honest in their references, regardless of whether their comments are positive or negative.