Sorry may no longer be the hardest word, at least in Ontario.
A while ago I posted the story “Sorry Seems to Be the Hardest Word,” on the (then) proposed Apology Act.* I’m glad to report that the Act has been passed and has been in force since April 23, 2009.
In a nutshell, the act “provides that an apology made by or on behalf of a person in relation to any civil matter does not constitute an admission of fault or liability by the person or an acknowledgment of liability in respect of a claim in relation to the matter, does not affect the insurance coverage available to the person making the apology and is not admissible in any judicial or quasi-judicial civil proceeding.”^
The Act stipulates that in civil proceedings, administrative proceedings or arbitrations, evidence of apology is inadmissible as evidence of fault or liability in connection with that matter.
However, there are exemptions – situations in which the Act is not applicable:
- If the apology is given during testimony at a civil proceeding, then the apology is admissible as part of the testimony.
- The Act does not apply to criminal proceedings.
In fact, section 3of the Act provides that “Nothing in this Act affects the admissibility of any evidence in a criminal proceeding, including a prosecution for perjury, or a proceeding under the Provincial Offences Act, or the use that may be made in the proceedings referred to in subsection 2 (3) [civil proceedings, administrative proceedings or arbitrations] of a conviction for a criminal or provincial offence.”
- The Act does not affect the calculation of the limitation period under the section 13 of the Limitations Act.#
The legal community in Ontario largely welcomes the enactment of the legislation.
Says Mary Jane Smitt, a litigation partner with Blakes, Cassels & Graydon LLP in Toronto: “Although there will be lawyers who will be cautious about advising clients to apologize, … one of the big culture shifts in the law over the last decade has been the consideration of other means to resolve disputes. Apologies protected by the legislation is one more tool in this arsenal.”+
Perhaps the spirit of the Act is best captured by the spokesperson for the Ontario Ministry of the Attorney General, Brendan Crawley, who said “Saying sorry for an accident or wrongdoing is the right thing to do.“**
I couldn’t agree more.
^Explanatory note, extracted from the Bill as introduced.
*S.O. 2009 c. 3
#S.O. 2002, c. 24, sch B
+Donalee Moulton, “Legal profession not sorry to see apology legislation” The Lawyers Weekly (17 July 2009) 1
**Ibid.
Note: This article does not constitute legal advice. It is not offered as a substitute for the legislation. The legislation may have been amended since the publication of the article.
