Apologies and Liability in Canadian Contract and Tort Law.
By Jonathan Marchand
People are strange and complex beings. However, despite this complexity, we tend to prefer simplicity and order, and have developed an amazing skill at pattern-matching. This skill has been a boon to humans during our development, leading us to develop art, writing, mathematics, science, and all the benefits of modern society.
However, when applied to people, that same thinking can lead to certain unfortune stereotypes and assumptions where all members of a group get judged together. Every nation seems to have one or two widely known ‘facts’ about its people which circulate continuously, and which seem to defy any attempt at suppression. Canada is no exception.
We’ve all heard the international stereotypes about Canadians -we’re too polite, we apologize for everything, we’re among the kindest people you’d meet. As far as stereotypes go, it’s not a bad one to have, but it’s obviously not true universally.
As far as apologizing goes however, there is some evidence that we are in fact uniquely susceptible – the near-universal prevalence of so called “Apology Laws” in Canada.
These laws make apologies inadmissible in court to prove liability for civil claims. This kind of law has popped up in sporadic locations worldwide, especially in places with high levels of litigiousness, but in Canada it is incredibly widespread.
All provinces except Quebec have their own apology laws, and so do the territories of Nunavut and Yukon.
Apologies and the Law
In 2009, the Ontario legislature voted into law the Apology Act. This Act specifically makes an apology by or on behalf of a person inadmissible to prove liability in tort or contract.
This means that if your neighbour’s land is flooded, and he thinks you may be responsible and sues you, he cannot use the fact that you said “I’m sorry for your loss” as an admission by you that you were responsible for the damage. While this may seem a bit silly, it’s actually very important.
In tort law, proving liability is most of the work in a case. Damages only come into play after you have established liability. This would also be very important in contractual breach cases, where an admission could be used to prove a breach occurred.
Whether it’s a landlord who is responsible for building upkeep apologizing for the water damage from a roof leaking, or a doctor apologizing for a case that led to an insurance claim, or a salesmen expressing sympathy for a faulty item sold, these admissions would previously (and would still in the majority of the world) be considered to be admissions of fault or guilt.
This can lead to some dehumanizing outcomes, such as the doctor who wants to express his sympathy at the loss of a patient to their family, but who cannot because if he does so it may be considered an admission of liability for malpractice or some other negligence action.
Apology legislation prevents this issue, and there is a growing movement in Canada among doctors and medical associations to be more empathetic and provide more sympathetic apologies to patients as a result.
What the Act does not do is make an apology inadmissible as evidence in a criminal proceeding or a proceeding under the Provincial Offences Act. If you apologize to the police for speeding, that apology will be evidence that you were speeding!
The Act goes further than just eliminating a baseline apology or expression of sympathy as admission, however.
The Apology Act
There are two general types of apology legislation. One only applies to expressions of sympathy or empathy, the simple “I’m sorry this happened.” The other, applies to apologies which also directly admit liability – “I’m sorry, this is all my fault.” There is a significant legal difference between the two apologies.
The Ontario Apology Act is of the second type, it disallows evidence of an apology made by a party to be admitted into evidence at trial, administrative proceedings, or arbitrations, unless that apology is made while testifying in that case. This applies even to express admissions of guilt if they are part of an apology.
The Apology Act is just one example of interesting legislation which can affect how a litigation case will resolve. Litigation is complex. There are many moving parts in any civil litigation case, and a case can turn on the smallest or most apparently insignificant things – like an apology. To properly navigate these troubled waters, it’s always best to have an experienced litigation attorney who can help guide you through the best path to your desired outcome.