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 employers pause for thought before they refuse to provide a reference letter. Such a refusal cost the employer $5,000 in this case.
Two school teachers sued their former employer following the non-renewal 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.
The 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.
The Appeal Decision
The Court of Appeal reversed the trial judge’s decision and said the teachers were entitled to an additional year pay (less any earnings from mitigation). The Court of Appeal relied on a number of administrative guidelines and policies to say that notice of non-renewal 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, give rises 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 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.