As reported in a recent CBC News story, the Anglican Church of Canada
apologized recently for failing – for over 20 years
– to make public a confession of sexual misconduct by one of
its priests. Gordan Nakayama, father of well-known Canadian writer
Joy Kogawa, confessed his crimes to the church in writing in 1994.
In reference to his "sexual bad behaviour", Nakayama said
he was "sincerely sorry [for] what [he] did to so many
It is hard to predict what impact this apology might have had on
Nakayama's many victims, had it been made sooner. Victims of
sexual abuse often struggle with guilt, shame, anger, and fear. In
cases where the abuser was a powerful or trusted community figure,
like a priest, victims are often too scared to come forward.
Historically, victims who did come forward were frequently
disbelieved and shamed back into silence. Acknowledgment of the
wrong inflicted upon them by the perpetrator of their harms, or an
institution like a church that may be vicariously liable for their
harms, can be of enormous psychological value to those whose lives
have been impacted by sexual abuse. Those who work in mental health
often speak of the significant health benefits associated with
earlier intervention and support. Delays often result in more
entrenched harms and injuries, which make healing more
The Apology Act, 2009 is an Ontario law that protects
from liability in civil lawsuits and other proceedings those who
apologize for wrongs they have committed or allowed to occur. Under
this legislation, an "apology" is "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 in connection with the matter to
which the words or actions relate."
Evidence of an apology made by or on behalf of a person in
connection with sexual abuse (or other matters) cannot be used in
legal proceedings to prove the apologizer is "guilty"
(example liable), unless it falls under one of the narrow
exceptions set out in the legislation.
In addition to promoting the victims' healing, where the
apology is made in the context of existing or threatened
litigation, it may also be of strategic value to the party
apologizing. In some cases, an apology may help avoid a lawsuit. In
others, an apology may protect a party from an award of aggravated
damages. With intentional torts, like sexual assault and battery,
the purpose of aggravated damages is to compensate a plaintiff for
the humiliating, oppressive, and malicious aspects of a
defendant's conduct. Aggravated damages are very commonly
awarded in sexual abuse cases. A carefully worded apology can not
only help restore a victim's dignity, but may also counteract
allegations of oppressive and malicious conduct and thus, the risk
of an aggravated damages award.
When and where an apology is made is very important. As noted,
the Apology Act contains exemptions which describe
circumstances in which apologies are not protected. For example, a
person who apologizes when testifying at a civil trial is not
protected from liability. We recommend that parties who are or may
become involved in legal proceedings in Ontario review the
Apology Act and consult their lawyers about opportunities
to make a protected apology.
Anglican priest Nakayama died in 1994, shortly after confessing
his wrongdoing to the Anglican Church. His remaining victims are
elderly, and presumably many have passed away. While we applaud the
Anglican Church for making Nakayama's apology public, and Joy
Kagawa's courage in speaking publicly about what is no doubt a
painful part of her family history, the value of this disclosure is
greatly diminished with the passage of time. The majority of
Canadian provinces and territories now have some form of apology
legislation. We hope that in a similar situation, an institution
with knowledge of sexual misconduct will investigate its options
and take the opportunity to make known an apology like
Nakayama's, if not to the public at large then at least to
those who may similarly have been harmed. The opportunity to make a
significant difference in the lives of victims, while remaining
protected from liability, should not be wasted.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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