Letters of reference can be very helpful when looking for employment. However, increasingly, due to issues with liability (great letter for an employee who turns out to be terrible), management and consistency, many employers have policies that prohibit formal reference letters for all departing employees – regardless of their performance.
In most of Canada, it doesn’t appear that there is any recognized common law duty to provide a letter of reference. However, the Court of Appeal of Quebec (QCA) has recently ruled that Quebec is also a distinct society when it comes to letters of reference.
In Arseneault (Succession de) c. École Sacré-Coeur de Montréal, 2013 QCCA 1664 (CanLII), the QCA held that because the Civil Code of Quebec imposes a general duty to act in good faith in contractual relationships (and employment is considered a contractual relationship), a teacher whose contracted was not renewed was entitled to a formal (and positive) letter of reference. The teacher was awarded $5,000 in damages to compensate for the failure to provide the letter.
The Court was careful not to make a blanket statement that all employees in all circumstances are entitled to a letter, saying instead that (my loose translation) ”employers must only apply good faith in exercising theirability to not give one” (i.e., a legitimately poor performer is not entitled to a letter). However, to me, this statement clearly does open the door to an entitlement for most employees to get letters of reference in Quebec. After all, how many employers will want to prove poor performance in justifying a refusal to give a letter.
This decision may open up a new revenue stream for employment lawyers who create liability-free reference letters!
Should employers be required to give letters of reference to their departing employees? Please share your thoughts in the comments.