Earlier this year the Ontario legislature followed the lead of four other provinces and passed the Apology Act, 2009, with surprisingly little fanfare. In the past, counsel, particularly in civil actions, have relied on the apology, whether oral or in writing, as strong evidence of proof of liability on the part of the apologizer. While the Court has rarely been swayed by this piece of evidence standing alone, in some cases it has been an important piece of the puzzle in proving liability. Think of a wrongful dismissal case where the guilt-ridden manager unburdens himself to the employee and then delivers the bad news in line with HR’s policy.
The overloading of the Courts with litigation in the last decade has resulted in an emerging preference on the part of the legislature and the judiciary in favour of alternate means of dispute resolution, such as mediation and arbitration. Presently, mediation is mandatory in some civil actions and it is growing. The experience of mediators in Ontario has led to the revelation that sometimes the parties have a significant interest in receiving an apology as a face-saving exercise. And you thought it was just about the money.The new Act dovetails with the trend towards resolution short of trial. In many circumstances, anyone may now make a clear admission of fault prior to litigation or at certain points in the litigation but the Court, by law, may not rely upon the admission in finding liability. The difficult distinction between a simple admission of fault and a factually relevant statement will be left for future Courts to decide.There are some important apology caveats that apply for criminal law and after civil litigation has been commenced. An apology made prior to or after the laying of a charge in criminal or quasi- criminal proceedings may still be relied upon by the Crown as an admission of liability for the offence. An apology in a civil action volunteered during an examination for discovery or at trial may also still be relied upon by the Court as an admission of liability.Our view is that the new Act will not radically change the behaviour of business people or litigants. Out of an abundance of caution, counsel will continue to advise against an apology and in favour of blanket denials. The legal exposure of the apology remains and the unclear benefit will need to be considered on an individual basis.Where we see some prospect for useful application of this legislation is in relation to the ultimate settlement of civil litigation before trial and the delivery of a Release or a separate document containing an apology. You are now free to apologize – well, almost.