Canada: Apologizing - Keeping Dispute Resolution Simple

While negotiation, mediation, arbitration and litigation all have their benefits, and may be needed in some circumstances, there is a far simpler dispute resolution tool which has proven itself in personal and professional disputes and yet continues to fly under the radar. Sometimes a simple apology goes a long way in helping to resolve disputes efficiently and favourably.

THE CONCERN

While most people recognize the value of apologies for mending personal relationships, many remain uncertain of their place in commercial disputes. Fearing that an apology will be taken as an admission of fault, business people tend to shy away from admitting mistakes or sounding remorseful. The perceived risk that such statements might void insurance coverage or negate litigation defenses often quashes any interest in apologizing.

APOLOGY LEGISLATION

These fears, while prevalent, are not necessarily well-founded. Canadian courts have often handled apologies quite favourably, placing little or no emphasis on them when assessing liability. The protection extended to apologies has been further enhanced by legislation in Alberta, British Columbia, Manitoba, Newfoundland & Labrador, Ontario, Nova Scotia, Nunavut and Saskatchewan (Prince Edward Island has limited its apology legislation to the health services industry, and it is not considered in this article).

Compared to its foreign counterparts, Canadian apology legislation is quite broad. It protects both expressions of sympathy and statements that indicate or imply an admission of fault. The protection is available in all kinds of civil cases, which makes apologies a useful tool in a wide range of disputes.

In general, apology legislation provides that an apology:

1. is not an admission of fault;

2. may not be considered in any determination of fault;

3. is inadmissible as evidence of fault; and

4. does not impair, void or otherwise affect any insurance coverage, regardless of any wording to the contrary in the policy itself or any other legislation.

This legislation is designed to assuage concerns about the legal impact of apologies. As stated by the BC Legislative Assembly "The Apology Act encourages the moral and humane behavior of apologizing for wrongdoings and promotes open and direct dialogue between persons in conflict."

APOLOGIZING CAN HELP RESOLVE DISPUTES

When settlement discussions are driven by financial considerations, it's easy to lose sight of the human elements involved in the dispute, particularly in negligence and other tort claims. Legal remedies are typically monetary awards, which are often insufficient to compensate people who have suffered without experiencing a monetary loss. When a person is fueled by a sense of anger, injustice, hurt or pain, the most meaningful component of any compensation offered may well be an apology.

Studies have shown that properly apologizing when a complaint is made or a possible error comes to light can result in one or more of the following benefits:

1. a decrease in the frequency and number of lawsuits;

2. more efficient settlement negotiations; and

3. more favourable amounts of damages agreed to in settlement or awarded at trial.

ELEMENTS OF AN EFFECTIVE APOLOGY

Anyone who has been on the receiving end of a half-hearted apology knows how unsatisfactory they are. In fact, some studies suggest that a settlement offer including a partial apology is more likely to be refused than the same offer without any apology at all.

Some jurisdictions outside Canada do not protect full apologies; parties are restricted to offering their regrets without actually apologizing for the harm done. Fortunately, Canadian apology legislation does protect full apologies, which are the most effective in settling disputes.

The key elements of a proper apology can be summarized by the five R's: Regret, Recognition, Responsibility, Remedy and "Realness".

Regret

This is the "I'm sorry" component of the traditional apology. You must convey a sense of empathy for the recipient. This may be the most crucial aspect of any apology.

Recognition

For an apology to be meaningful, you have to know what you are apologizing for. A proper apology should convey an understanding of, and regret for, the inconvenience, harm, loss or suffering caused (or perceived to have been caused) by your actions. However, avoid getting into granular details, which might be taken as admissions of fact.

Responsibility

This is where apologies get tricky, because human instinct is to deflect blame. Canadian apology legislation is designed to protect against the risk of having an apology used against you as an admission of fault. The recipient is more likely to accept your apology if they do not see you as making excuses for your actions. Nevertheless, while taking responsibility is important, avoid making admissions of fact, as those may be held against you if the dispute goes to court.

Remedy

A true apology indicates a willingness to remedy the situation. This is often a two-step process. First, you need to make restitution for the harm already caused. Second, you need to satisfy the recipient that the situation will not be repeated in the future.

"Realness"

An apology should be genuine, voluntary and prompt. One that is perceived as insincere generally does more harm than good. If the recipient has to extract the apology from you,don't expect to be forgiven.

A delay in offering an apology may also affect how it is perceived. In Ontario the Legislature clarified that apologies offered during court testimony (i.e. in discovery or at trial) will be denied the protection of the Apology Act. Such apologies are likely too late to be considered genuine and will have little benefit, if any, towards favourably resolving the dispute. They may even be taken as admissions of fault.

POINTS OF CAUTION

While apologies have proven beneficial in many situations, you should give careful thought to their wording, their timing, and the particular circumstances and parties involved. A few tips and cautionary notes are set out below:

The laws are not the same across the board

If you are dealing with an international matter seek legal advice before offering an apology, as there are significant differences between jurisdictions about when an apology qualifies for statutory protection. There are also subtle differences between the Canadian provincial statutes, which you should become familiar with.

The provincial Apology Acts do not apply to the criminal context

If you're looking to apologize for a potentially criminal offense, the provincial Apology Acts will not help you. These statutes do not change the way an apology is treated in the criminal context. Nor do they apply to other matters exclusively within federal jurisdiction.

Delayed apologies can cause limitation difficulties

Aside from affecting how an apology is perceived, a delay in offering an apology may revive a cause of action whose limitation period has expired. Many provincial Apology Acts expressly state that an apology is not a confirmation or acknowledgement of a cause of action for limitation purposes. However, the Manitoba statute remains silent on this issue, and the Ontario statute leaves the question open by stating that it does not affect whether an apology is an acknowledgement of liability for limitation purposes.

Better results are not guaranteed

An apology doesn't guarantee forgiveness and is far from a "get out of jail free" card. It does not eliminate the right to sue and it does not necessarily make parties more amenable to settlement negotiations. While apologies are a useful dispute resolution tool, if you are relying solely on an apology to escape liability you may be disappointed.

This could be a developing area of law

Although apology legislation has been in place for several years in some provinces, there is little jurisprudence analyzing its effectiveness. While this could mean that apologies are being used as intended, the lack of judicial comment does leave room for ambiguity.

Opposing counsel may try to emphasize your apology

Notwithstanding the protective legislation, if the dispute goes to court, opposing counsel will likely try to present your apology as evidence of liability. It will be up to your counsel and the judge to ensure that your apology is afforded the intended protection.

Apologies mixing statements of fact are problematic

There is some jurisprudence which suggests that admissions of fact are not protected by apology legislation. For example, consider a situation where Driver A collides with Driver B and says, "I'm so sorry, this is all my fault. I was looking at my cell phone instead of the road." The admission about Driver A's lack of attention is quite likely relevant to liability. Even though coupled with an apology, it might be admitted into evidence.

This may warrant greater concern when apologies are written. If an apology letter contains statements of fact in addition to an apology, a version with the apology redacted out might be admissible evidence in court.

CONCLUSION

Apologies are a useful tool in the early resolution of civil disputes. Provided they are made effectively and within the parameters of the protective legislation, they should be embraced rather than feared.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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