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Giving bad references is OK if they're true Former employee seeks almost $800,000 in defamation and punitive damages for employer's bad reference – but only gets $17,000 for reasonable notice of dismissal BY JEFFREY R. SMITH A n Ontario employer was entitled to give a bad reference about a former employee if it believed the information it gave was true, the Ontario Superior Court of Justice has ruled. Stokes Economic Consulting (SEC) is an economic forecasting company in Milton, Ont., founded by Ernest Stokes in 1995. e company hired Adam Papp in March 2011 to be a staff economist. Papp successfully com - pleted a six-month probationary period and became a permanent employee, joining four other staff economists with the company. ey all shared certain responsibilities, but Papp was primarily responsible for prepar - ing the Ontario economic forecast. Over the next two years, Papp and Ernest Stokes corresponded regularly on matters such as Papp's salary increases and bonuses as well as certain projects. However, in 2013, Stokes' wife was diagnosed with terminal cancer and his son, Aaron, began overseeing Papp's work. ere was no formal announce - ment on the change in responsibility. Papp characterized the workplace at SEC as informal and relaxed, but sometimes Er- nest Stokes and his son shouted at each other with bad language. He also testified that Ernest Stokes was "casually demeaning" to- wards employees and their work. Other em- ployees reported the same: a casual, friendly environment but things could get tense when deadlines were nearing. While Papp was considered good and knowledgeable at his job, he sometimes didn't get along with others at work. Some felt he was argumentative, made inappropri - ate comments, disrespected authority, and didn't show a good work ethic — and as a result he wasn't well liked. Aaron Stokes be- came frustrated with Papp, but Papp wasn't disciplined because it was chalked up to "a personality issue." ere was one incident in the fall of 2013 when Papp and Aaron Stokes began shouting at each other and, according to Papp, Aaron make disparaging remarks to him in front of others and accused him of not doing his assigned work. Papp said he didn't bring the matter to Ernest Stokes because he felt SEC was "a family-first company." Ernest Stokes was also aware of issues with Papp. On one occasion, Papp accused the staff of making him sick; on another Papp called everyone in a meeting "stupid." However, Stokes believed these incidents were out of the ordinary and felt it wasn't necessary to reprimand Papp. On Dec. 19, 2013, Aaron Stokes informed Papp that his employment was being ter - minated due to a lack of work. According to Aaron, company sales were down and there wasn't enough work for all the economists on staff. Papp was chosen to be terminated because they had completed a project in which he was involved and his salary was higher than the other economists because of his Masters degree. Papp was told: "We are not going to make a case against you; we are not going to deny you EI. e paperwork will be in the mail. Clean out your desk." e day after his termination, Papp emailed Ernest Stokes for permission to use him as a reference and Stokes agreed to verify the work he had done for SEC and his technical capabilities. About three weeks later SEC provided Papp with a paycheque for the first two weeks of January since it was late in sending his record of employ - ment, which could delay Papp's eligibility for employment insurance payments. At that point, the company believed it had paid what it owed Papp under employment standards legislation. In May 2014, Papp applied for a job with the Yukon government, listing Ernest Stokes as one of his references. After interviewing him, the Yukon government considered Papp the top-ranked candidate for the posi - tion. As a result, Papp emailed Ernest Stokes to let him know he would be contacted re- garding his job application. On July 2, a Yukon government employee called Ernest Stokes and asked him a series YOU'VE PROBABLY HEARD of the saying, "if you don't have anything good to say, don't say anything at all." Well, that's not always the case – at least for employers providing references for former employees. Many employers are afraid to provide anything more than basic facts about a former worker's job, especially if they don't have anything positive to say. But a recent Ontario decision shows employers shouldn't be afraid to be upfront about employee performance issues in reference checks – as long as it's the truth. 4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: REFERENCES BACKGROUND Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as employee personal leaves, definition of the workplace, fixed-term contracts, and workplace harassment. You can view the blog at www.employmentlawtoday.com.

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