Craig Brown on the Apology Act
I’ve covered the Apology Act on Slaw before, and Dan Pinnington has touched on the implication for insurers.
One of my professors at UWO, Dr. Craig Brown, has taken it a step further, and suggests it may even assist insurers. Dr. Brown is the author of Insurance Law in Canada, probably the foremost work in this area.
In a recent article in The Lawyers Weekly he states,
…apologies will likely benefit defendants and their insurers by reducing both the damages payable and the costs of reaching a settlement.
The legislation encourages interaction between the parties to a dispute at a non-legal level, allowing for the possibility of a healing process often denied by the adversarial nature of the litigation process. In other words, the Act provides for a form of restorative justice.
To facilitate this restorative justice, I would suggest that litigators utilize more communication professionals in their practice, especially as it relates to public apologies.
I would tend to agree with Dr. Brown. Many of the injured people who call me (a personal injury lawyer) are just as riled up about the fact that the at fault driver didn’t apologize as they are about the fact of the accident. I wonder whether some of those people would even bother calling a lawyer for compensation if they had received a heartfelt apology at the accident scene or shortly thereafter.
Personally, I am all for apologizing. A little humanity in a crisis goes a long way.
Prof Brown’s observation is pretty basic. Any discussion of apologies and legislation to facilitate apologies notes that they are likely to reduce the incidence and anger level of litigation – so defendants and their insurers must benefit.
Insurers had an initial concern about lack of uniformity, where apologies might be protected in one province but not in another, so someone might apologize in, say, BC, but then be sued in Alberta and have the apology used against them.
Now that six or seven provinces have apology legislation on the Uniform model, that’s less of an issue.
Ontario was the only province where the principles of the legislation were challenged in the Legislature both in the House and in Committee. Ontario’s statute is however very much on the uniform model – its variants do not take away from the key point (and the one that drew the most challenge): a protected apology includes one that admits fault.
My own view is that legislation that does not protect an apology that admits fault is not worth having.