A defamatory statement is defined in 24 Hals., 3rd ed., pp. 6-7, as follows [See Drouim v. Gagnon]:
A defamatory statement is a statement which, if published of and concerning a person, is calculated to lower him in the estimation of right-thinking men or cause him to be shunned or avoided or to expose him to hatred contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business.
Further, in Botiuk v. Toronto Free Press Publications Ltd., , Cory J. stated while analyzing in the Supreme Court of Canada:
…..a publication which tends to lower a person in the estimation of right thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability.
The two important takeaways from the foregoing are, to qualify as a defamatory statement:
· The statement must be published; and
· The statement must lower the person in estimation in the eyes of a “third party”.
The Supreme Court of Canada in Grant v Torstar Corp.,  confirmed published means that the statement was conveyed to at least one person other than the plaintiff. The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.
Any oral statements exchanged between two individuals, that to do not relate to any third party, and that were not conveyed, spoken or disclosed to any third party, cannot be accounted for as defamatory.
In P.G. restaurant Ltd. V. Northern Interior Reginal Health Board et. al, , the Supreme Court of British Columbia confirmed:
In an action for defamation, the onus is on the plaintiff to establish:(a) that the words complained of were published; (b) that the words complained of refer to the plaintiff; and (c) that the words complained of, in their natural and ordinary meaning, or in some pleaded extended meaning, are defamatory of the plaintiff.
In determining whether or not the words used are defamatory, a court will look at their ordinary and natural meaning.
Whether the published statement was capable of being defamatory is a question of law, and whether the statement given in its ordinary meaning under the circumstances is defamatory is a question of fact (see Kerr v. Conlogue).
So, what if someone’s previous employer gave a negative reference, to a potential employer, costing that someone his/her job? Is there an action against the employer under defamation?
In Kanak v. Riggin, , the Court of Appeal For Ontario dismissed the appeal from Ms. Kanak, wherein she initiated a lawsuit against her previous manager, Mr. Riggin, alleging defamatory statements were made about her, by Mr. Riggin during a reference check from a potential employer over phone, costing her the job.
Ms. Kanak received an offer of employment, conditional to a positive reference check. After speaking over phone with Mr. Riggin, the potential employer advised Ms. Kanak that she has not been able to meet the conditions of employment since Mr. Riggin provided a negative reference. The employment offer was rescinded.
Ms. Kanak initiated an action against Mr. Riggin, alleging defamatory statements were made during the reference check over phone. These statements were recorded in form of written notes by the potential employer. These included remarks such as:
a) There was a lot of conflict between Ms. Kanak, her supervisor and other employees;
b) Ms. Kanak did not take directions well;
c) Ms. Kanak does not handle stress well; and
d) He [Darryl Riggin] would not re-hire Ms. Kanak in a project controls position, but would hire her in an autonomous financial position.
The court established that the words spoken were defamatory in nature.
Ms. Kanak alleged that Mr. Riggin’s statements were motivated by “malice, spite and a desire to get revenge on her”.
In GRG Building Consultants Inc. v. Juffs, , the Ontario Superior Court of Justice provided:
If words are defamatory, then there are two defences that are available to a defendant: justification and privilege.
Justification means, in essence, truth: the words are substantially true.
Qualified privilege means that on the occasion on which the communication was made the person who made it had an interest or a legal social, or moral duty to make it. The effect of qualified privilege is to rebut the presumption of malice.
Ms. Kanak alleged that qualified privilege does not apply, and that even if it does, the privilege does not protect the defamatory statements because these were motivated by malice. She cited three office incidents in which she had arguments with Mr. Riggin, alleging that these incidents developed spite or ill will against her. She also stated that others hold good opinion about her, including the direct supervisor of Mr. Riggin.
McSweeney J. rejected Ms. Kanak’s arguments, dismissing the action, stating:
It is settled law that the protection of qualified privilege is lost if the plaintiff proves that the dominant motive for publishing the defamatory expression is actual or express malice.
I have considered the totality of the evidence adduced at trial. The evidence does not establish malice on the part of the defendant. The plaintiff has therefore failed to defeat the defence of qualified privilege.
The Supreme Court of Canada has recently denied leave to appeal in this matter.
In view of the foregoing, from an employer’s perspective giving out references:
1. Be professional while providing a reference.
2. Avoid giving any negative comments about the employee.
3. Tone down the language while bringing out weaknesses of the employee, perhaps by countering with some positive traits of the employee.
4. Do not get personal to avoid statements suggestive of malice, vengeance or ill will.