So, you've heard that we have an Apology Act1 and you're wondering if you can apologize for a bad situation or whether that would be an admission of liability that gets your business in trouble.
Quick note: And, this act doesn't affect admissibility of evidence in criminal matters or offences under the Provincial Offences Act.
The act says (s.1):
"apology" means 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.
So, an apology doesn't mean an admission of liability. These are separate things.
Big difference in saying "I'm sorry for your experience" and "Oops, my fault".
- Important to keep that in mind when looking at your insurance coverage and they say to you that you cannot admit liability without telling them first.
Protecting your ability to apologize (s. 2)
- is not an admission of liability,
- does not void or impair an insurance contract, and
- is not taken into account in determining liability
Apologies are not admissible in court as evidence of fault or liability.
But, an admission of liability is still an admission of liability.
So what can be used against you?
A recent case2 reviewed the case law on apologies and found the following:
The above cases reveal that courts may have difficulty determining whether an expression is an apology, and therefore inadmissible evidence, or whether the expression is admissible evidence as: (a) an admission of a material fact; (b) an admission of a fact from which liability may be inferred; or (c) an admission of liability. Thus, in the above cases, the courts undertook a contextual analysis of the defendants' expressions and excluded from evidence the part of the expressions that constituted an apology but admitted into evidence the parts that were non-apologetic admissions. (paragraph 20)
In other words, the "I'm sorry" part might be excluded but other parts of the statement, letter or document might be evidence that could be used against you.
As well, the court said:
Rather, while an apology cannot be pleaded, it can be the subject of examinations for discovery. The purpose of the examination would be to discover whether the statement alleged to be an apology is indeed an apology and to determine whether there are portions of the statement that are relevant non-apologetic evidence of liability. (paragraph 25)
In other words, part of the litigation process could very well include being asked about the apology with a view to determining if the apology statement included material facts or an admission of liability.
Material facts and admissions of liability are admissible as evidence in court.
If the issue that your business wishes to apologize for might lead to a claim, consider consulting your insurance company and legal counsel to determine the best way to apologize without getting into trouble.
1 Apology Act, 2009, S.O. 2009, c. 3, available at: https://www.ontario.ca/laws/statute/09a03
2 Coles v. Takata Corporation, 2016 ONSC 4885; 2016 ONSC 4885 (CanLII)
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