Individuals and corporations have long been reluctant to express any kind of sympathy or remorse to a person who has made a claim against them, even though it might clearly be the humane thing to do. Academic literature has demonstrated that many people really just want a recognition of wrongdoing and an apology, and many surveys have shown that a good proportion of parties initiating civil litigation would have refrained from doing so if they had been given a proper apology by the alleged wrongdoer.

Ontario has recently passed legislation that ensures that an apology cannot be considered as an admission of fault or liability and is not admissible in any civil proceeding initiated by the person apologized to. An apology is broadly defined to include: “an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability”.

Legislation relating to apologies is very new in Canada and, at the present time, only three provinces have Apology Acts. British Columbia was the first province to pass an Apology Act which came into force on May 18, 2006. Manitoba’s Apology Act came into force in February, 2008. Ontario’s Apology Act has been in force since April 23, 2009.

Saskatchewan dealt with the legal effect of an apology by providing a section in its Evidence Act that has the same effect as the Apology Acts in the other provinces. This section was enacted on May 17, 2007.

When the Ontario legislation was introduced, one of the stated aims of the Apology Act was to reduce lawsuits by allowing communications of genuine compassion, sorrow or regret.

So far, there is no Canadian case law dealing with any of these Apology Acts. However, the purpose of the Acts is clear. There was a recognition that parties were afraid to express an apology for fear of the apology being taken as an admission of liability or guilt. The literature demonstrated that many individuals who became involved in civil litigation would have refrained from initiating actions, if they had received an apology.

As noted by British Columbia Attorney General’s discussion paper on apology legislation, the factors favouring apology legislation included:

(a) to avoid litigation and encourage the early and cost-effective resolution of disputes;

(b) to encourage natural, open and direct dialogue between people after injuries; and

(c) to encourage people to engage in the moral and humane act of apologizing after they have injured another and to take responsibility for their actions.

The discussion paper went on to recognize that there may be some negative results, such as the effect on public confidence if a person had admitted liability in an apology and was later found not liable in a civil action, insincere apologies could be encouraged and vulnerable people might not pursue the full extent of recourse open to them. Despite the possible negatives, the four provinces mentioned have moved forward with apology legislation, in order to recognize the benefits of apologies, both morally and as a way to resolve disputes without resort to civil litigation.

The whole purpose of apology legislation is to allow a party who is accused of a wrong to offer some solace to the party who feels they have suffered a wrong, without admitting civil liability. It allows humane expressions of regret or sympathy without having such expressions used later in a civil action. Although it is too early to tell, it is hoped that the result will be to allow solace to be offered to those who have been injured or suffered damage to assist in the healing process.

This article was originally posted in the February 7, 2009 edition of the Ottawa Business Journal.