Apology Accepted, but Not as Evidence!

From a young age, we’re all taught to apologize when we do something wrong. As we get older, we learn to apologize even when we are right (or think we are – see here for further information related to apologies in the marital context).

However, in a professional context, we often hesitate to apologize out of fear for liability. Fortunately, in Ontario, there is legislation in place to take mitigate some of that risk and allow people to apologize with less fear.

The Ontario Apology Act came into force on April 23, 2009. Section 2(1) states that “an apology made by or on behalf of a person in connection with any matter does not, in law, constitute an express or implied admission of fault or liability by the person in connection with that matter.” Further, section 2(3) provides that evidence of an apology is not admissible as evidence of fault or liability in any civil, administrative, or arbitration proceeding. Importantly, section 3 of the Apology Act outlines exceptions relating to criminal proceedings and proceedings under the Provincial Offences Act, which include Occupational Health and Safety proceedings.

In the employment law context, the Apology Act may affect the admissibility of an employer’s apology to an employee, or vice versa, as evidence in employment-related proceedings. The Apology Act’s provisions may be especially relevant where an employer has terminated an employee for theft, fraud or negligence, as the admissibility of any apology made by the employee in relation to the misconduct may be inadmissible at trial.

Additionally, an apology can be powerful as its own form of dispute resolution (again, see “marriage”). Therefore, depending on the facts and the nature of the proceeding, the Apology Act may play an important role in developing a litigation strategy.