Shannon Whyley of MLT Aikins Law in her article “Say What You Need to Say: Employers not Liable in Defamation for Negative Employee References” provides a good summary of two Superior Court decisions [see below] which give former employers more room to provide a negative reference:

“the dual judgments should give employers some comfort that they will likely not be held liable in defamation if they give a negative reference about an employee. Should an employer choose to give a negative reference, it should be sure to speak as truthfully as possible and to take steps to verify any negative events or reports involving the employee before discussing the employee with someone from another organization. Of course, an employer also should generally feel free to decline to give a reference for an employee about whom it would not speak positively.”

For further commentary on these two cases and on proving and defending defamation, please see Hayley Gaucher’s article, “Negative employee reference given honestly and in good faith does not constitute defamation, Ontario court finds”.

Citations for the two decisions:

Papp v Stokes Economic Consulting Inc., 2017 ONSC 2357
Kanak v Riggin, 2016 ONSC 2837 [online copy not available]