Just over a month ago I said right here on Slaw,
…government officials should also review legislation relating to liability of public apologies so that responsible companies like Maple Leaf are not penalized in the process.
It seems someone was paying attention.
A new proposed law would address this issue. The Ministry of the Attorney General of Ontario said in a release today,
The Apology Act would, if passed:
- Allow individuals and organizations, such as hospitals and other public institutions, to apologize for an accident or wrongdoing, without it being used as evidence of liability in a civil legal proceeding under provincial law
- Help victims by acknowledging that harm has been done to them — an apology is often key to the healing process
- Promote accountability, transparency and patient safety by allowing open and frank discussions between patients and health care providers
- Enhance the affordability and speed of the justice system by fostering the resolution of civil disputes and shortening or avoiding litigation.
B.C., Manitoba, and Saskatchewan have already enacted similar legislation.
Michel-Adrien Sheppard covered this topic earlier in the year.
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The Ontario government's Bill 108 expressly excludes from its 'safe harbour' proceedings under the Provincial Offences Act. This means that apologies can be used as evidence of fault in provincial prosecutions. The Ontario bill is thus narrower than the statutes in BC, SK and MB.
None of the legislation can apply to the use of apologies in Criminal Code prosecutions, as they are governed by the Canada Evidence Act.
The Ontario bill goes on to note that a conviction in a provincial or federal prosecution can be used in evidence in a civil or administrative proceeding. No doubt this was true for criminal convictions anyway, but the subsection serves as a warning to would-be apologizers.
Some of the press material for other jurisdictions' statutes say that they permit sincere apologies. Nothing in the text limits its application to sincere apologies; any apology is covered.
However, nothing in the legislation guarantees that an apology will have any particular legal effect, except that it can't itself be used to show fault. So an insincere apology may not turn away wrath, or reduce the chance that the victim will sue. An apology is not an excuse in law and this legislation does not make it one.
On October 15, Alberta introduced its own apology legislation, by way of an amendment to the Evidence Act (as was done in Saskatchewan). Bill 30 is very much like the Uniform Apology Act, except that it does not apply to prosecutions. Ontario made a similar, if more wordy, exception in its bill.
Alberta is moving right along. The bill was introduced on October 15 and started Second Reading on the 16th. The status is here.
While this Bill seems well intentioned, the
exclusion of an admission of liability from becoming evidentiary in a civil suit serves only to protect the defendant and the insurance companies. It does nothing to appease the plaintiff/victim. An apology, and an admission of liability are "feel good" items and may indeed assist in counselling a victim, but if that person is now unable to recover for lost future wages or for the financial impact of having become handicapped as a result of someone's negligence, then that apology is emotionally meaningless and is purely protective of insurance companies. In that respect, the Bill is morally bankrupt.
UPDATE: Ontario's Apology Legislation, Bill 108, passed 3rd reading on March 10, 2009.
Some of the arguments against the Bill being "morally bankrupt", as Jeff puts it, are:
- People are now in practice stopped from apologizing either through their own fear of liability, their lawyers' advice, or their insurance companies' prohibition. If apologies are to be encouraged, legislation like this is needed.
- An apology that is merely an expression of regret without a taking of responsibility is much less likely to be psychologically effective or even accepted by the victim. The B.C. Ombudsman's Report in 2006 makes that very clear. That report launched the movement for apology legislation in Canada.
- An apology is likely to be more effective when spontaneous, or at least not obviously lawyered, and if the apologizer has to parse the apology word for word to avoid admitting fault – ideally while taking responsibility – it is less likely to be given.
- Admissions of fault may not be used in evidence if they are given in mediation or in settlement negotiations. The Apology Act adds apologies to these privileged occasions for admissions of fault, in order to encourage them – the same reason that they are protected in these other instances. The frank apology is considered more valuable than the evidentiary value of the admission.
- It will be rare that the admission of fault that accompanies an apology is the only evidence that supports liability. The apology is not an excuse in law. Its content may be used to find admissible evidence. (The apology is not a 'poisoned tree' whose fruit would be excluded from evidence.) So the chance of someone being seriously injured and failing to recover solely because of the missing apology/admission is slim.
FWIW five provinces (including Ontario) have now passed apology legislation, all basically on the same model, i.e. including admissions of fault. Alberta passed its law the same month it was introduced, last October. Ontario is the only one in which it actually encountered debate.