Employment Reference Letters Required in Quebec?

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.

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Comments

  1. Are there cases in the rest of Canada where a former employer has actually been held liable for the contents of a reference letter, or is the reluctance to provide such letters just another example of legal excess caution? Surely the qualified privilege attaching to such letters is clear?

  2. In Wallace v. United Grain Growers Ltd., the Supreme Court of Canada noted that a refusal to provide a former employee with a letter of reference following the termination of his or her employment would constitute bad faith or unfair dealings in the manner of dismissal — and therefore could be used as evidence in support of a damages claim. This is particularly the case when a letter of reference is withheld as a negotiating tool or bargaining chip in exchange for acceptance of a severance package. Further, by refusing to provide a letter of reference, an employer is arguably making it more difficult for the former employee to find new work, thereby impeding the employee’s mitigation efforts. This may result in a longer reasonable notice period.

    In the 2008 Keays v. Honda Canada Inc. case failing to give a reference has also been a basis for awarding additional damages, although an ex-employee will have to prove that the failure to give a reference directly resulted in additional damages.

    The Supreme Court of Canada in Young v. Bella advances the law on employee references and negligent misstatement in Canada. Young v. Bella is important to employment law because it suggests that employers can be held liable for negligently providing a negative reference for an employee, notwithstanding the defence of qualified privilege.

    There is a myriad of cases in the US… but also the decision of the British House of Lords in Spring v. Guardian Assurance, in which a majority of the court ruled that employers can be held liable for damages caused to employees by negligently prepared references.

  3. if the Spring case is followed in Canada, or Young v. Bella is applied in employment law, the defence of qualified privilege may be less effective, because the focus in such cases shifts from malicious falsehood to negligent misrepresentation.

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