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To Apologize or Not

Currently, only in B.C., Manitoba and Saskatchewan is there "Apology Legislation" (called "A/P"). Currently there is a recommendation before the Ontario Bar Association to urge our Provincial Government to enact A/P here. Such legislation, traditionally stipulates that an apology can not be: (i) An admission in Court to prove liability; (ii) Used as confirmation of a cause of action to extend a limitation period; and (iii) Regarded as an admission of liability for the purpose of avoiding an insurance policy. The rationale of A/P is to encourage early and cost effective dispute resolution and/or avoid commencing costly litigation, if an apology will suffice. The current state of law (absent A/P legislation) is that an apology is considered a key admission. For example, in Defamation, the wronged party inevitably requests an apology in an attempt to remedialize their reputation; if the Defaming party refuses to apologize and the Plaintiff wins, they get increased damages. In Contempt of Court proceedings, the defending party often wishes to 'purge their contempt' by apologizing. An apology in some Commercial Disputes could be beneficial. Occasionally, Plaintiffs litigate 'out of principle', because of injured pride, or the perception that they are innocent victims of injustice. Typically, this type of litigate costs more to take to Court, than they can conceivably recover. In Medical Malpractice suits many patients have indicated that they might not have sued their doctor if the doctor had admitted their mistake, given an explanation and apologised. The downside of proposed A/P legislation is that it eliminates a Court's discretion to make a finding of liability, based on a clear admission of fault by the wrong doer. As presently worded, the draft legislation , broadly defines and Apology as "an expression of sympathy or regret . . . indicating contrition or commiseration, whether or not the words or actions admit or imply and admission of guilt." In some cases, the only evidence of fault, is an admission by the wrong doer. If the Court's hands are tied by this proposed A/P legislation and disallow any consideration of such an admission, as fault in determining liability, same could result in an injustice. This potential danger could be addressed by limiting the scope of the legislation and applying it only to apologies given after the commencement of litigation. Such an amendment might undercut the objectives which is to prevent litigation, but it is a balancing act. Additionally, an apology might be viewed as trivial or meaningless, if the maker knows it is inadmissible. Presumably, most people won't apologize if they believe they have done nothing wrong; or alternatively, the recipient may not accept an apology if they believe it is insincere. It will be interesting to see whether our Provincial Government considers drafting and/or enacting A/P legislation.

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