The Province of Ontario has legislation known as the “Apology Act“.
When an injury occurs, the lawyers and insurance companies rush to the scene. The first thing they say to their clients is:
“don’t say anything”.
The question is how can this be helpful? Sometimes silence is the same as arrogance, and that simply encourages people to sue.
The new legislation permits an apology to be offered without it being considered as an admission of liability. Sometimes such a statement would nullify insurance coverage.
An “apology is defined as follows:
“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.
Effect of apology on liability
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.
Evidence of apology not admissible
(3) Despite any other Act or law, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of the fault or liability of any person in connection with that matter.
(4) However, if a person makes an apology while testifying at a civil proceeding, including while testifying at an out of court examination in the context of the civil proceeding, at an administrative proceeding or at an arbitration, this section does not apply to the apology for the purposes of that proceeding or arbitration.
The purpose of the new law is to ensure that an apology does not constitute an admission of fault or liability by the person, except for the purposes of a proceeding under the Provincial Offences Act , and does not affect the insurance coverage available to any person in relation to that matter.
Also, an apology is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of the fault or liability of any person in relation to that matter.
However, if someone apologizes while testifying at a civil proceeding, administrative proceeding or arbitration, the benefit of this legislation does not apply for the purposes of that proceeding or arbitration.
The legislation will be helpful in certain limited circumstances. It will aid professionals who were negligent, particularly doctors. Often a patient’s family may be reluctant to sue if an apology were provided by a doctor or hospital. Silence is interpreted as arrogance, and incites the patient and their family.
It will also assist large corporations, gas companies with explosions, food companies distributing contaminated products and so on. Again, the arrogance factor is mitigated by offering an apology and an explanation.
When it comes to real estate agents, this legislation is not of much help. As a collective group, real estate agents are not generally viewed as arrogant. If there is a loss caused by an agent, then there is a reasonable likelihood of a lawsuit. Apologies really aren’t here nor there. The damage is financial and there is no personal injury.
Consequently, the Act will have little if any benefit to the real estate community.
If you’re going to be sued, you will be!
Brian Madigan LL.B., Broker