In Ontario, defamation occurs when false statements are made about a person that harm their reputation. In the workplace, defamation often arises during termination, job references, workplace investigations, disciplinary processes, or internal communications about an employee.
A statement may be defamatory if it would lower a person’s reputation in the eyes of a reasonable person. As the Supreme Court of Canada noted in G. v Torstar Corp, 2009 SCC 61 (CanLII), defamatory statements are those that would tend to lower a person’s reputation in the eyes of a reasonable person.
Defamation can take two forms:
- Libel, which refers to written defamatory statements
- Slander, which refers to spoken defamatory statements
When Can Defamation Happen at Work?
Defamation can occur at any stage of the employment relationship. Employers must be careful when making statements about employees, especially where those statements may affect the employee’s reputation, career prospects, or ability to secure future work.
Common situations where workplace defamation may arise include:
- false allegations of misconduct
- negative or misleading job references
- inaccurate statements in termination letters or records
- comments about an employee’s honesty, competence, or professionalism
- statements made during workplace investigations or disciplinary processes
- internal or external communications that damage an employee’s reputation
In some cases, statements made by employees during the course of their work may also expose an employer to liability. Under the law of vicarious liability, employers may be held responsible for defamatory statements made by employees acting within the scope of their duties.
Can an Employee Sue for Defamation?
An employee may have a claim for defamation where false statements are made about them, communicated to others, and cause reputational harm.
Defamation claims sometimes arise alongside wrongful dismissal claims. This can happen where an employer makes false allegations after termination, provides an inaccurate explanation for dismissal, or communicates damaging statements that interfere with the employee’s ability to find new work.
In Hampton Securities v D., 2018 ONSC 10, the court found that an employer had defamed an employee by filing a false notice with the securities commission after her termination. The employer failed to prove that the allegations were true, and the employee was awarded significant damages.
Bad Job References and Defamation
Not every negative statement made by a former employer is defamatory. Employers may sometimes provide negative information about a former employee if the information is shared in appropriate circumstances and without malice.
For example, in P. v Stokes Economic Consulting Inc and Kanak v R., courts have found that defamatory statements were made in job references, but the employers avoided liability due to valid legal defences.
What Is Not Defamation?
Not all negative workplace statements amount to defamation. Employers may be entitled to make fair and accurate statements about performance, conduct, or suitability for a role. Truthful statements are not defamatory simply because they are unflattering.
Defences to Defamation
Absolute Privilege
Statements made during judicial or quasi-judicial proceedings may be protected from liability.
Qualified Privilege
This may apply where a person has a duty to communicate information, such as providing a job reference, provided the statement is not made with malice.
Justification
If a statement is true, it is not defamatory. However, the burden of proving truth rests on the person making the statement.
Workplace Defamation and Wrongful Dismissal
Defamation often overlaps with wrongful dismissal. False allegations made during or after termination can damage an employee’s reputation and affect future employment opportunities.
Speak to an Employment Lawyer
If your employer has made false statements that harmed your reputation or affected your ability to find work, you may have a claim. At Monkhouse Law, our employment lawyers represent employees across Ontario and can assess your situation. Contact us for a free 30-minute phone consultation.