Apology or No Apology - That is the Question

Stuff happens. Some of that stuff is bad and we regret that it happened. We regret that others are injured. We wish to convey our regret. However, the legal implication of saying sorry may give us pause. If we say we are sorry, have we admitted liability for wrongdoing?

For example, following a heavy snowfall a passerby slips on the sidewalk in front of our property. We rush outside to help and wish to convey our regrets for their misfortune. However, if we say we are sorry, is it an admission that we should have had the sidewalk cleared earlier? Will our apology help them if they sue?

In Ontario, the Apology Act prevents an apology from being used against you in a civil proceeding (don't stop reading here, there are some important exceptions). Section 2(3) states that evidence of an apology made by, or on behalf of anyone, is not admissible as an express or implied admission of liability. The exceptions, as set out in the Apology Act, allow evidence of an apology to be used in a criminal proceeding, perjury, and a prosecution under the Provincial Offences Act. Evidence of an apology given during a civil proceeding, such as during an examination for discovery may also be used against you.

However, only the apology is inadmissible. Any admission of liability that is extraneous can be used in the court case.

In Cormack v Chalmers, the plaintiff was badly injured while swimming. She was struck by a boat propeller and was badly injured. She sued both the boat owners and the owners of the residence where she was a guest. The plaintiff attempted to lead evidence about an admission by the property owners which stated that they were sorry, could not forgive themselves and that they always told people not to swim behind the dock. The statement added that the property owner regretted not telling the plaintiff not to swim behind the dock. The court ruled that the apology was not admissible but that the additional statement that the owners "always told people not to swim behind the dock" which had been coupled to the apology was admissible.

The Lesson: When stuff happens, it is okay to apologize but do so carefully. Adding information of your knowledge of a dangerous situation or failure to warn someone could be problematic. In the case of the slippery sidewalk, adding a statement that you meant to clear the walkway earlier but had not, would likely escape the provision of the Apology Act and be admissible against you in court.

Apology Act, 2009, S.O. 2009, c. 3 http://www.ontario.ca/laws/statute/09a03

Cormack v Chalmers, 2015 ONSC 5599 https://www.canlii.org/en/on/onsc/doc/2015/2015onsc5599/2015onsc5599.pdf

The content and the opinions expressed here is informational purposes only and does not constitute legal or professional advice. Nor does reading or commenting on it create a lawyer/client relationship with the author. I encourage you to contact me directly at adrianlawoffice@gmail.com if you have specific legal questions or concerns.

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