The cost of not providing references

February 16, 2014 - by: Louise Bechamp 0 COMMENTS

By Louise Béchamp

Many employers’ policies preclude them from providing reference letters. Other employers have no policies. And yet others have policies but do not consistently apply them.

The Court of Appeal of Québec’s recent decision in Arsenault (Succession de) v. École Sacré-Cœur de Montréal (available in French only) should give Canadian employers pause for thought before they refuse to provide a reference letter. Such a refusal cost the employer $5,000 in this case.

Facts

Two schoolteachers sued their former employer following the nonrenewal of their teaching contracts. Despite the fact that one teacher did not have a teaching certificate, her annual employment contract had been renewed for nine years. In the past, the school had always successfully requested a letter of tolerance from the government.

In 2008, the school decided not to renew her contract on the basis that the government requirement for a teaching certificate was being more strictly enforced. As a result, the school did not request a letter of tolerance.

The other employee, an Italian language teacher, had been working at the school for seven years, and her contract was not renewed because of a change in the teaching program. This second teacher requested a letter of recommendation from the school. The director of the school refused.

Superior Court decision

In Superior Court, the judge concluded that the school director’s reasons for not renewing the contracts were pretexts for simply getting rid of two teachers the director did not like. Nevertheless, the judge concluded that the school was within its rights to not renew the annual employment contracts.

Appeal decision

The Court of Appeal reversed the trial judge’s decision and said that the teachers were entitled to an additional year’s pay (less any earnings from mitigation). The Court of Appeal relied on a number of administrative guidelines and policies to say that notice of nonrenewal had not been provided on time. As such, the court considered that each contract had been renewed for an additional year, hence the award of damages.

More interestingly, the court considered that by refusing to issue a letter of recommendation to the teacher who had specifically requested one, the school acted in bad faith and was liable for damages.

According to the court, “a person’s curriculum vitae forms part of his or her reputation. The unexplained void in the particular circumstances, that is to say the bad faith of [the school director] in the instant matter, gives rise to a condemnation” [our translation].

Although the court specifically recognized that an employer has no legal obligation to provide a letter of reference, it went on to say that an employer cannot exercise bad faith in refusing to do so. In the result, the teacher was awarded $5,000 in moral damages.

Lessons to be learned

While many employers do not as a matter of policy issue letters of recommendation, some do not consistently apply their policy, and other employers have no policy and will deal with the requests for written references on a case-by-case basis.

Following this Court of Appeal decision, we would recommend that Canadian employers review their current practice in regard to letters of reference and ensure consistency in the application of their policy. Inconsistency in the issuance of such letters or a bad faith refusal to issue recommendations to a former employee can now, at least in Quebec, give rise to additional damages.

About Louise Bechamp:
Louise Béchamp's practice focuses mainly on employment and labour law and she has significant experience in federal law matters. The clients under federal jurisdiction that she frequently represents come from many sectors, including the railway industry, the telecommunications' and the banking sectors. Furthermore, she regularly acts on behalf of manufacturing and service enterprises, counselling on all aspects of employee relations, be it employment contracts, employment standards, policy development, severance pay or implementing collective agreements. Her practice brings her to appear regularly before higher courts as well as administrative tribunals, such as the Canada Industrial Relations Board and adjudicators. She also counsels clients on human rights and matters of pay equity. She regularly gives training courses concerning harassment in the workplace and she accepts to act as examiner following harassment complaints filed against employers.
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