Legal Ease, May 8

Can I Sue for a Bad Reference?

As a general rule, if someone says something about you that would lower your reputation in the eyes of reasonable people, you can sue for defamation.

Written defamation is libel, and verbal defamation is slander.

Of course, if the defamation is true, you don’t have much of a case and sometimes things can be hurtful, but not defamatory—so if you say someone is too old or too fat, that’s not very nice but (except in special cases) nothing defamatory.

Matters of opinion, as opposed to facts, are often not defamatory because they are merely opinion.

So if someone says “I don’t think James is very bright and he’s fat,” that may hurt my feeling but it’s probably not defamatory. But if someone says, “James is a thief,” that is defamatory because it’s an allegation of a concrete fact.

A limited exception to the general principle of when you can sue for a defamation comes up in job references.

Usually such references are not subject to a claim for defamation because of a defence known as qualified privilege. What that means is that, so long as the reference was given honestly, it cannot be the subject of a defamation claim.

That’s because society needs people to be open and honest in job references. If I had an employee who was always late, it’s appropriate that I be allowed to say so. My honest opinion is of value, and I shouldn’t be sued if I say what I honestly believe.

The Supreme Court of Canada says this about qualified privilege:

“Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself….

“(A) privileged occasion is… an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.

“The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice.

“Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice.”

An important point here is the word “malice.”

Malice means someone is not being fair and honest—they are acting in bad faith.

If you say something not because you believe it to be true but because you want to hurt someone, then you cannot rely on qualified privilege. You cannot hide behind qualified privilege if you are using a reference to injure someone on purpose.

A job reference that is knowingly false and designed to make sure, for example, that someone doesn’t get a job is validly subject to a claim for defamation. That said a terrible reference letter made honestly is protected by qualified privilege.

But you cannot intentionally lie about someone so as to hurt them, and then claim qualified privilege.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.