Apology Acts Make 'I'm Sorry' a Key Dispute Resolution Tool
You've done something wrong and you want to apologize. That's the right thing to do, right? That's what mom said. But in the eyes of the law, an apology can sometimes be an admission that leads to liability and damages. That dilemma has led to the creation of so-called "Apology Acts" in some jurisdictions.
As discussed in this post on the Slaw.ca blog, Ontario enacted an "Apology Act" on April 23, which "allows the communication of expressions of sorrow or regret without worrying that the comments can later be used adversely in a civil court." Ontario was the fourth Canadian jurisdiction to enact apology legislation, following British Columbia, Saskatchewan and Manitoba. Slaw.ca reports that more than 30 states in the U.S. have similar legislation in place.
According to a recent LawPRO article analyzing the Ontario law, proponents from the health-care field originally championed the cause. For years, health-care professionals avoided apologizing to patients for mistakes for fear that their apology would be considered an admission of guilt in any future civil proceedings. But over time many of these professionals began to feel that apologizing would help "initiate the healing process" and promote open communication and accountability, which led to a push for the legislation.
Specifically, under the Act an apology made by or on behalf of a person:
- does not constitute an admission of fault or liability by the person;
- does not affect any insurance coverage or indemnity available despite any wording to the contrary in the contract of insurance or an act or law;
- shall not be taken into account in determining fault or liability in the matter; and
- is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of fault or liability in the matter.
The Act does carve out some limited circumstances under which an apology can be admissible. These include an apology given while testifying at a civil proceeding or while testifying at an administrative proceeding or arbitration.
Yvonne Diedrick, claims counsel at LawPRO and author of the article on the Ontario law, suggests that lawyers handling matters subject to Apology Acts should consider apologizing as a tool for dispute resolution that could shorten or perhaps avoid litigation altogether. "Take a chance and don’t be afraid to start practising those key words: I’m sorry.'"
Posted by Bruce Carton on December 11, 2009 at 11:32 AM | Permalink
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