In April of 2009, a little known law called the Apology Act (the "Act")
entered into force. A very short act, it primarily accomplishes one
objective: it precludes parties in civil matters from using an
apology made by the other party as evidence of fault or liability.
Even the fact of the apology is inadmissible.
The Act does have some limitations, in
particular, it does not apply to criminal or quasi-criminal matters
(such as health and safety and other prosecutions under the
Provincial Offences Act.)
A recent decision from the Ontario Superior Court of Justice
demonstrates that it may apply in straightforward or perhaps
interesting ways in employment law.
In Simaei v Hannaford, the Court
was asked to strike certain pleadings for violating the
Act, because they referenced an apology that the
defendant had given the plaintiff.
The case was described by the Master who adjudicated the motion
as having a "lot of heat." As a result, the Master
removed the previous version of the pleadings from the public
record, and only vaguely referred to them in the decision.
What we can determine is that the wrongful dismissal action
involved significant claims for punitive damages as well as damages
for libel, and that at some point the plaintiff apologized.
The Master found that as a result of the Act,
the apology was inadmissible as evidence of liability, and was not
properly in the pleadings. In addition, as a result of the
decision, the Master found that the plaintiff was not entitled to
ask questions about the apology on discovery of the defendant.
Dismissals of long-service employees, particularly where cause
is not alleged and the dismissal is the result of business
requirements or other circumstances beyond the employer's
control, can be difficult and emotional. This case can reassure
employers that genuine expressions of sympathy and concern for a
dismissed employee are unlikely to be admissible to advance a
Unfortunately, the Master's rare decision to remove the
apology from the public record and to provide almost no analysis of
the characerization of the apology leaves the caselaw with a
vacuum. It is certainly unusual for the public record to be
stricken in this way, particularly when there are no important
security concerns or children affected.
As such, it is important to note that the circumstances
surrounding an apology are not protected by the
Act. If, in the course of an apology, an employer
makes a statement asserting cause or setting out the
"reason" for termination, then depending on the
circumstances an employer may be precluded from arguing that
admission is inadmissible as evidence. For example, if an employer
were to phrase a termination in the form of an apology and give an
unlawful reason for the termination, as in: "I'm sorry,
but you're too feminine for this job so we have to terminate
your employment," it seems unlikely that a court would permit
the employer to hide behind the Act. That would seem an absurd
result. Of course, it could be argued the Act supports exactly that
sort of result. Time will tell.
Learn more about the ever-developing law on terminations, among
other current hot topics in labour and employment law, at our
29th Annual Employers' Conference. Attendees receive
5.25 CPD Credit Hours toward HRPA Recertification and this may
apply toward 5.25 substantive CPD hours with LSUC. To review our
complete agenda, or to register,
In the meantime, it is advisable for communications with
employees at sensitive times like terminations and
post-termination, be handled by specific persons with human
resources training, preferably with legal advice.
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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