Defamation and Negative References
Update by Erin Brandt, Cofounder and Angie Sung
We are often asked whether an employer will face legal consequences for giving a recently dismissed employee a negative reference. In Lawetz v Wigboldus, 2024 BCSC 1867 (“Lawetz”), the British Columbia Supreme Court gave us guidance in finding that a negative reference was not defamation, as the former manager’s comments fell within the defenses of qualified privilege and justification.
Background
Mr. Lawetz and Mr. Wigboldus previously worked together at CounterPath Technologies Inc. (“CounterPath”). Between 2016 and 2018, Mr. Wigboldus was Mr. Lawetz’s direct supervisor.
In 2018, Mr. Lawetz left CounterPath and subsequently sued CounterPath for constructive dismissal. Mr. Wigboldus left CounterPath in 2021 for another role.
The dispute between Mr. Lawetz and Mr. Wigboldus arose in 2022 when Ms. Maier, a former colleague and mentee of Mr. Wigboldus contacted Mr. Wigboldus regarding Mr. Lawetz’s application to join her sales team. Ms. Maier had a close professional relationship with Mr. Wigboldus and sought his opinion on hiring Mr. Lawetz. Mr. Wigboldus responded to Ms. Maier’s inquiry with a cautious warning, and raised concerns about Mr. Lawetz’s aggressive sales tactics, performance issues and complaints raised by his colleagues and clients at CounterPath. Ms. Maier shared this feedback with her hiring team.
Ultimately, Ms. Maier’s team did not offer Mr. Lawetz employment.
Decision
The Court found that some comments made by Mr. Wigboldus established a prima facie case for defamation. But Mr. Wigboldus was successful in defending the plaintiff’s claim by proving his comments were protected by “qualified privilege” and “justified”, two separate defenses to defamation.
Defamation
To establish defamation, Mr. Lawetz was required to prove:
The defendant made comments that are defamatory, in the sense that they would lower his reputation in the eyes of a reasonable person;
The comments referred to the plaintiff; and
The comments were published, meaning that they were communicated to at least one person other than the plaintiff.
The Court found Mr. Wigboldus’s criticism regarding the plaintiff’s poor performance and negative sales tactics would sufficiently lower his reputation. The fact that the comments were published was not at dispute.
Defense: Qualified Privilege
However, the Court dismissed Mr. Lawetz’s claim because Mr. Wigboldus’s comments, although prima facie defamatory, were protected by qualified privilege. The defense of qualified privilege is available “if the person making the comment has an interest or a legal, social, moral, or personal duty to convey the information at issue to another person, and that other person has a corresponding interest or duty to receive it.”
The Court found the provision of an employment reference to be a “classic occasion of qualified privilege”.
Malice
The defense of qualified privilege could fail if the dominant purpose for making the statements was malice. Mr. Lawetz needed to prove that the statements were made:
Due to spite or ill will;
For an indirect or ulterior purpose that conflicts with the purpose of providing the job reference; or
Dishonestly, with reckless disregard for the truth.
With no evidence of malice by Mr. Wigboldus, the Court accepted Mr. Wigboldus’ defense of qualified privilege.
Defense: Justification
The Court continued its analysis with a review of the defense of justification which is available if the defamatory statements are true or substantially true. The court found that Mr. Wigboldus’ statements were a mix of facts and opinion which “were true, were substantially true, or were the result of Mr. Wigboldus’ honestly held opinions about Mr. Lawetz as a sales representative.”
Therefore, the Court concluded that even if it had found malice, Mr. Wigboldus was nevertheless justified in making the statements to Ms. Maier.
Key Take Away for Employees
Lawetz cautions that employees have an uphill battle pursuing a defamation case against a former employer for a poor reference, since the defense of qualified privilege gives employers quite a bit of leeway to comment on the performance of former employees.
However, qualified privilege does not give an employer an automatic right to act maliciously and a case for defamation may still succeed where the employer acts out of spite, ill will, dishonestly and recklessly, or with an ulterior motive.
Key Take Away for Employers
Lawetz provides some relief to employers who wish to give an honest assessment of a departing employee to a future hiring manager. However, employers should exercise caution responding to reference checks since there is still legal risk in making comments that hurt another’s reputation. For example, employers should be careful to keep comments truthful and avoid spiteful or reckless comments or pushing an agenda unrelated to the reference check. Employers should also be mindful that when comments are made verbally, people sometimes have different memories of what was said, while written comments that cross the line can become evidence in a later claim.
