Qualified Privilege — Ontario Employment Law
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About Qualified Privilege
In the course of managing a workplace, employers, employees, and unions often need to share sensitive or negative information. In Ontario employment law, qualified privilege is a vital common law defence against defamation. It protects individuals or organizations who make potentially damaging statements, provided they had a legal, social, or moral duty to share that information, and the recipient had a corresponding duty or interest in receiving it.
Without this protection, everyday workplace functions would be paralyzed by the constant threat of libel or slander lawsuits. In the employment context, qualified privilege typically covers several specific occasions. The most common is the job reference. When a prospective employer asks a former manager about an applicant's work history, both parties share a mutual interest in the employee's track record. Consequently, a former employer can provide an honest, even if negative, assessment without committing actionable defamation. Similarly, employers are shielded when submitting statutory forms, such as indicating a dismissal for cause on a Record of Employment (ROE) for Service Canada. Privilege also extends to internal communications, such as sharing the results of a workplace harassment investigation mandated by the Occupational Health and Safety Act (OHSA) with the necessary parties, or a union updating its membership about internal governance disputes.
However, this legal shield is "qualified," meaning it is not absolute. The protection vanishes if the plaintiff can prove that the statements were made with malice. In this context, malice does not just mean anger; it means the person making the statement knew it was false, acted with reckless disregard for the truth, was motivated by an ulterior purpose (like revenge), or published the information to people who had no legitimate need to know it.
Assessing whether an occasion attracts this defence, or whether a statement crossed the line into malice, demands a granular review of who said what, to whom, and why. Because the line between protected communication and actionable defamation is highly technical, anyone embroiled in a dispute over damaging workplace statements should arrange a consultation with an employment lawyer to properly evaluate the communication's legal status.
Frequently Asked Questions
Can I sue my former employer for giving me a bad reference?
You can initiate a claim, but former employers generally have a defence of qualified privilege when giving references to prospective employers. Unless you can prove they lied on purpose, acted out of spite, or shared the bad reference out of vindictiveness (malice), the court will likely protect their statements.
Is my employer protected from defamation if they write something negative on my ROE?
Yes, completing a Record of Employment (ROE) is a statutory duty under federal law. Indicating that you were fired, even for cause, is generally protected by qualified privilege unless the employer recorded it knowing it was definitively false just to harm your ability to collect Employment Insurance.
Can a union be sued for saying negative things about a former executive?
Unions often share updates about internal disputes, governance, or collective bargaining with their members. Because the union has a duty to inform members and the members have an interest in knowing, these internal communications are usually shielded by qualified privilege, provided they are not dispersed to the general public.
Are workplace harassment investigations protected by privilege?
Under the Occupational Health and Safety Act, employers must investigate harassment claims. Communicating the findings to the complainant, respondent, and essential HR personnel attracts qualified privilege, ensuring necessary workplace safety discussions can occur without constant fear of defamation lawsuits.
What destroys the defence of qualified privilege?
The defence is defeated if the plaintiff proves 'malice'. In law, this means the statement was made with a reckless lack of belief in its truth, driven by an ulterior motive, or broadcast to a wider audience than was necessary to fulfill the duty.
When should I have a lawyer review a potentially defamatory statement?
If a negative statement has cost you a job offer, or if you are an employer facing a threat of litigation over a performance review, you should seek legal guidance immediately. Defamation law is incredibly rigid, and a lawyer can assess whether the specific context of the communication restricts liability.
Is there a time limit to sue for workplace defamation?
Yes, civil claims in Ontario are generally governed by a strict two-year limitation period from the date you discovered the defamation. However, certain actions governed by the Libel and Slander Act may have much shorter notice requirements, meaning you must act very quickly after discovering the harmful statement.
Common Scenarios
- A former operations manager receives a call from a hiring company and honestly states that the departing employee struggled with arriving on time and resolving conflicts, a conversation fully protected by qualified privilege.
- An HR director concludes a sensitive workplace investigation into theft and shares a specialized summary report strictly with the company's executive committee, preserving privilege by limiting publication to essential decision-makers.
- A disgruntled former supervisor intentionally lies about a former subordinate's sales numbers to sabotage their new career opportunity, thereby losing the protection of qualified privilege due to obvious malice.
- A union newsletter detailing why a specific shop steward was removed from their position is mailed directly to local union members, safely relying on the mutual interest between the union leadership and the bargaining unit.
What You Should Know
- To maintain qualified privilege over internal affairs, operate strictly on a 'need to know' basis; never circulate disciplinary findings or investigation results to the entire office.
- If you are requested to provide a job reference, limit your commentary to factual, documented observations about the person's employment rather than emotional or speculative opinions.
- Employees suspecting they are victims of vindictive references should try to gather written documentation or recruiter testimonies that highlight an ex-employer's ulterior motives, which is required to prove malice.
- Because defeating a privilege defence involves complex evidentiary hurdles, individuals harmed by workplace gossip should have a legal professional evaluate the communication trail before rushing to file a lawsuit.
Featured Cases
S.-N. v. Rubin Thomlinson LLP
2023 ONCA 86 (CanLII) · 2023-02-08Appeal Dismissed in Defamation Claim Over Harassment Report
This is an appeal to the Court of Appeal from an order granting the respondents' motion to dismiss the appellant's defamation action under the anti-SLAPP provisions (s. 137.1 of the Courts of Justice Act). The appellant, a medical resident, had sued the respondent workplace investigator over executive summaries that concluded her sexual harassment complaints were unproven and found her not credible. The motion judge dismissed the action, finding the summaries related to a matter of public interest, were protected by qualified privilege, lacked evidence of malice, and that the balancing test favoured protecting the expression. The Court of Appeal dismissed the appeal, holding that the reports on the investigation into a public educational institution regarding harassment and patient safety concerns engaged the public interest and were protected by qualified privilege.
W. v. OSSTF
2019 ONSC 5830 (CanLII) · 2019-10-08Union Defamation: Qualified Privilege & Summary Judgment
This is a summary judgment motion in a defamation action brought by a former union president against the union. The court addressed whether the union's publication of statements regarding the plaintiff's conduct and collective agreement negotiations was protected by qualified privilege and whether the plaintiff proved malice to defeat that privilege.
P. v. S.
2018 ONSC 1598 (CanLII) · 2018-03-09Wrongful Dismissal Appeal: Defamation & Costs
This is an appeal to the Divisional Court from a trial judge's decision in a wrongful dismissal case involving claims for defamation and aggravated damages related to an employment reference. The trial judge had awarded damages for reasonable notice but dismissed the defamation and aggravated damages claims. The appellate court found that the trial judge misapplied the costs rule and remitted the costs award for reconsideration.
P. v S. et al
2017 ONSC 2357 (CanLII) · 2017-04-18Wrongful Dismissal: 4 Months Notice Awarded
This wrongful dismissal case involved a plaintiff terminated without cause after less than three years of employment. The court applied the Bardal factors to determine that four months' notice was reasonable, noting that bonuses were not integral to compensation and mitigation was not in issue. The court also addressed a defamation claim arising from reference checks, finding the employer's statements substantially true and protected by qualified privilege.
R. v. T.
2011 ONSC 794 (CanLII) · 2011-03-02Union Defamation: Qualified Privilege in Flyer Distribution
This is a summary judgment ruling in a defamation action arising from union governance matters. The court addressed whether the distribution of a flyer containing allegedly defamatory statements about union executive members was protected by qualified privilege and whether the court had jurisdiction over the dispute.
K. v. Best Buy Canada Limited
2009 ONCA 66 (CanLII) · 2009-01-22Defamation Appeal: Employer Privilege in Termination Statements
This is an appeal to the Court of Appeal from a motion judge's decision dismissing a former employee's defamation claim against his employer. The employee sued over a statutory form submitted to employment insurance authorities stating he was dismissed for a conduct-related breach of policy. The motion judge found there was no triable issue regarding the defamation claim. The Court of Appeal agreed and dismissed the appeal, ruling that the employer's statements were protected by qualified privilege and showed no malice. The employee's claim remains dismissed.
B. v. R.
2005 CanLII 24744 (ON SC) · 2005-07-08A defamation case addressing the defences of qualified privilege and fair comment.
G. v. B.
2003 CanLII 40565 (ON SC) · 2003-07-14Defamation and Wrongful Dismissal: Superintendent Claims Defamation Caused Termination
A wrongful dismissal case where the plaintiff claimed defamation caused their termination as a superintendent. The court found insufficient evidence to establish a causal link between the defamatory statements and the termination, and denied aggravated and punitive damages due to lack of malice.
H. v. D.
1998 CanLII 14642 (ON SC) · 1998-01-27Defamation in Union: Malice Defeats Privilege
This is a defamation case arising in the context of a union dispute where the plaintiff, a projectionist and union member, was accused by fellow employees of sabotaging equipment. The court found that the defence of qualified privilege was defeated by malice, as the defendants continued to make defamatory allegations after the plaintiff was cleared in a union trial. The court awarded damages for mental distress, loss of reputation, and lost income.
L. v. Toronto Board of Education
1956 CanLII 52 (ON CA) · 1956-10-04Defamation of Dismissed Employee: Qualified Privilege
This is a torts appeal involving an employment dispute where the plaintiff sued the employer for defamation arising from the publication of reasons for unjust dismissal. The central legal issue is whether the employer's communication of dismissal reasons is protected by qualified privilege.
L. v. Siegrist & Co. Ltd.
1935 CanLII 60 (ON CA) · 1935-06-18Defamation Appeal: Employer Liability for Dismissal Letters
This is an appeal to the Court of Appeal for Ontario concerning a defamation action brought by a former employee against his former employer. The appeal addresses whether the trial judge erred in directing the jury on issues of qualified privilege, malice, and the admissibility of evidence regarding the circumstances of the plaintiff's dismissal.