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(Not) So Terribly Sorry

by Chris J. Bittle

A client recently came to my office to seek advice on a file. They were worried about the possibility of a nuisance law suit that they wanted to avoid (which is understandable).

The client was dealing with an individual who had a perceived slight against them by our client, however, the individual suffered no actual damages. The client was then told something no one wants to hear “I’m going to sue you.”

Facing the prospect of a nuisance lawsuit the client sheepishly asked if an apology would be a good idea, and to their surprise I told them it was an excellent plan.

We have been told that we should not, under any circumstance, admit liability. An apology is just that, admitting that you’ve done something wrong. However, it should not be counterintuitive to apologize if something goes wrong, for fear of potential liability.

There exists a piece of legislation in Ontario that would prevent your apology from ever being used at court*, the Apology Act (so long as the apology was made before the start of the court proceeding). Section 2 of the Apology Act states that: 2. (1) An apology made by or on behalf of a person in connection with any matter, (a) does not, in law, constitute an express or implied admission of fault or liability by the person in connection with that matter; (b) does not, despite any wording to the contrary in any contract of insurance or indemnity and despite any other Act or law, void, impair or otherwise affect any insurance or indemnity coverage for any person in connection with that matter; and (c) shall not be taken into account in any determination of fault or liability in connection with that matter.

In other words, the Apology Act allows people to admit liability without that admission having any legal effect. Some people were critical of legislation that an apology that cannot be used in court is meaningless. I believe, however, that this legislation is helpful to both sides of the apology as an expression of regret can be helpful for both parties. As well, it is often it is the humane thing to do in many circumstances.

An apology is broadly defined by the legislation as “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”. As such the apology can take any form, written or verbal.

An apology will not stop an individual from commencing a court proceeding if they have suffered significant damages. However, it may stop nuisance law suits like the example above or it may make settlement easier down the road as there may be fewer hurt feelings. Ultimately, it is worth a try as it cannot hurt you at court.

*However, please note that an apology will not be protected in the case of a crime or a regulatory offence such as the Highway Traffic Act and the Occupational Health and Safety Act, as those are still considered confessions and as we know from Law & Order, they can be used against you in a court of law.

The foregoing information is provided to you for information purposes only.  We caution you to obtain legal advice specific to your situation in all circumstances.

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