It is inherently awkward to ask a former employer to give you a positive reference when you are seeking to obtain employment elsewhere. Many employees wonder whether it is permissible for their former employer to badmouth them if called upon for a reference check. Courts in Ontario have now decided this matter and have ruled that the former employer can in fact “badmouth” a former employee if called upon for a reference check.

It had been relatively common practice for employers to say very little during a reference check about past employees, specifically out of fear of potential defamation lawsuits. However, in this new case, an economist attempted to sue his former employer for defamation as a result of actually providing a poor reference to a new prospective employer and the Court held that the former employer was not limited to only providing positive comments about its former employee. 

In doing so, the Court has permitted employers to provide honest feedback in response to a reference check request, even if that feedback is poor for the former employee applying for new work elsewhere. In this new case, the Court stated that what the employer said during the reference check was “substantially true” and therefore the employer did not have to pay any damages for defamation in the lawsuit.

If you are an employee seeking clarity on what your former employer can say about you, or if you are an employer seeking clarity on what you can say about a former employee, you should seek legal advice to better understand your rights and responsibilities. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.

Author: Nasyr Asmi