Saying a simple ‘sorry’ is also dealt with law, as governed by Canada’s Apology Act. Learning about this law can have a huge impact in negotiations and trials
In the past, lawyers would advise their clients to never say sorry when something happens, such as an accident, whether they’re really at fault or not. But this has now been changed through the enactment of the Apology Act by each province and territory in Canada.
Here, we’ll discuss the scope and limitations of these apology legislations, which are important in civil cases for damages and personal injury cases. This article can be used by lawyers as an educational piece for their clients who want to know if their apology has a bearing on their case.
Every province and territory in Canada have their own apology law, usually called the Apology Act. This statute protects apologies made by people for an injury or mistake, preventing these from being used against them in a civil case or in other related proceedings. While this protection has some exceptions, it allows those who are alleged to be at fault to apologize without the risk that it will be taken against them and used as evidence of their liability.
Conversely, these provincial statutes are also important in determining whether the defendant is liable for the alleged injurious act. Because of some differences in each apology statute of every province, there may be instances where an apology can also be used against them when they apologize.
Currently, there is no federal law on the same matter, and apology legislation is governed by the provinces and territories. Here’s a video that explains one of the provincial apology legislations, which is BC’s Apology Act:
Reach out to a lawyer if you have concerns regarding apologies, accidents, insurance claims, and everything in between. Check out our Special Report on Canada’s Best Personal Injury Law Firms for a list of the best lawyers and firms to reach out to.
The rationale for the provincial and territorial apology laws goes beyond what is claimed to be because of the Canadian culture of saying sorry so much.
First, it’s our nature as humans to say sorry — whether we’re really the party at fault or not. In highly stressful situations, we may say sorry out of unawareness, or even kindness and sympathy to the other party. This is what these apology legislations aim to protect; when apologies are unintentionally, but genuinely offered, they should not be taken against the person offering them.
Secondly, proving that a person is at fault for something, for which they must be liable for, must be based on other pieces of evidence and not just on a mere apology. Plaintiffs in personal injury cases, for instance, should be able to prove the defendant’s liability through the elements of a personal injury claim.
Another importance of these apology laws is that it promotes reconciliation among parties, leading to practical results, such as avoiding lengthy and costly litigation. It also applies not just to vehicular accidents, but also to claims of medical malpractice or negligence, and even to commercial disputes.
Every provincial or territorial apology statute is relatively short, when compared to other statutes. These apology statutes mainly deal with:
Most apology legislations have common provisions because most are patterned after the Uniform Apology Act (UAA) from the Uniform Law Conference of Canada. The UAA was formed in 2007, and provincial and territorial apology statutes followed. Notably, it was British Columbia and Saskatchewan that enacted their own apology legislation, which also became the basis for other apology statutes, before the UAA.
Not all provincial apology legislation is equally titled as an Apology Act, since there are others that have only amended their current laws to insert a provision on apologies. The provinces of Alberta and Saskatchewan have amended their Evidence Act to include provisions regarding apologies and its effects. Québec bears a similar provision on apologies under its Civil Code. For all other provinces and territory, they have enacted a statute titled Apology Act.
Aside from its name and how it was enacted, below are some areas where these different apology legislations may differ from each other:
The apology laws define an apology for the purpose of the protection they provide. An apology can either be:
These expressions, statements, words or actions are considered as an apology regardless of whether it expressly or impliedly admits fault or liability on the part of the person apologizing. It’s also important that the apology is related to the subject matter being apologized for.
The following are the effects of an apology under these apology statutes:
Here’s another summary of the effects and legal implications of apologies under Canada’s apology laws:
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If clients know that apologizing would not affect their liability, then saying a simple sorry may not be so difficult on their part. While this may be sound dense, it can actually have an effect on settlement negotiations for personal injury cases. An apology made right after an accident may save a person’s day, such as preventing a case from going to court or by simplifying a settlement negotiation process.
At the very least, a heartfelt apology by a defendant in a settlement negotiation may lower the amount being asked by the plaintiff. If it can save the defendant a large sum of dollars, without the fear of apologies biting them in back, then it’s better to say sorry than not. All these hinge on one thing: parting the words “sorry” is not difficult for a person because of the knowledge of Canada’s apology legislations.
At best, an apology may mitigate the amount of damages that can be awarded by the court to the winning plaintiff. However, this mitigating provision is only found in some apology laws, such as in PEI’s Defamation Act. When a judgment is rendered against the defendant, they can offer evidence that they apologized, or have offered a written or printed apology, to the plaintiff to mitigate damages. They can also present evidence that they apologized as soon as they had the opportunity if the case was already filed in court. The apology may be done by:
As commonly provided by the Canadian apology statutes, an apology is not a proof of liability or fault in the following proceedings:
However, it’s also important to note that the protections under these apology legislations are not absolute, since there are a number of exceptions to these laws. Here are some exceptions when an apology cannot be a basis for the determination of liability:
While the abovementioned exceptions may apply to most provinces and territories, this is another area where each of their apology legislation may differ. For example, Ontario’s Apology Act provides that an apology may be used against the person apologizing when the apology is made while testifying during the following proceedings:
In sum, what these apology legislations protect are out-of-court apologies, while it does not apply to apologies offered in a judicial proceeding.
An important distinction for these apology laws is that they do not apply to criminal prosecutions, both for federal crimes under the Criminal Act and for provincial offences. This provision is present in almost all provincial apology legislation.
For instance, Ontario’s Apology Act provides that an apology is admissible in evidence for:
In Nunavut, its own Apology Act goes further; it states that it does apply to contraventions of a municipal bylaw, in addition to other criminal offences.
Given that these laws have long been enacted, Canada’s common law has provided additional interpretations to the applicability of these apology legislations.
In the case of Robinson v. Cragg, 2010 ABQB 743, the issue before the court is whether the letter written and offered by the defendant to the plaintiff is an “apology” under the Alberta Evidence Act. On one side, the defendants argue that the letter should be inadmissible because it’s an apology letter, while the plaintiffs argue that only the words “...and I apologize for doing so” should be excluded from it. The court somehow agreed with the defendants and held that the apology offered by the defendant must be excluded. However, it also held that, stripped of its apology words, the whole letter is still admissible, given that it contains factual admissions relating to the defendants’ liability.
A similar ruling is also found in the case of Coles v. Takata Corporation, 2016 ONSC 4885. The court here excluded from evidence some parts of the Statements of Claim, which are expressions that constituted an apology, applying the Apology Act. However, it was ruled that the parts that were non-apologetic admissions can be admitted into evidence. The court also held that, since parties agreed to the procedural law of Ontario (the forum) will apply (as this is also a conflict of law case), then the Apology Act applies. This is because the Apology Act is a law of evidence, and law of evidence is procedural law.
Through Canada's Apology Act, people can now offer their sympathies without the fear of these being used against them in court. However, it's important to recognize its limitations (e.g., inapplicability to criminal cases) and its application to specific cases (e.g., in civil liability cases and personal injury cases). When clients understand how their provincial or territorial apology legislation works, they can make more confident decisions when faced with challenging situations, which oftentimes have legal consequences.
Other resources related to accidents and Canada’s Apology Act are found in our Personal Injury practice area page.
