Will You Be Sorry For Saying "I'm Sorry" - The Effect Of The Apology Act On Litigation

One of the comments that I, as a litigator, frequently hear is: "but s/he apologized". "Isn't that admitting s/he did it [the wrongdoing]?" The variation is, "I can't apologize. It will be like saying I did it [the wrongful act]" In both cases, the litigant or potential litigant is voicing what s/he believes the effect of an apology to be.

In Ontario, the Apology Act protects defendants from their apologies being used against them as an admission of wrongdoing or liability. Specifically, the Apology Act prevents a court from considering the apology in any determination of fault or liability.

At first glance, this might make it seem like offering an apology is safe. However, as a recent Ontario Superior Court explains, the situation is not quite so straightforward.

In Coles v Takata Corporation et al, the court was asked to consider the effect of an apology which was made abroad had on the litigation. The defendant airbag manufacturer was facing a products liability class action for defective airbags. In their Statements of Claim, the plaintiffs quoted statements that included apologies that had been made in Japan. The defendants moved to strike the quotations from the claims on the grounds that the Apology Act prevented an apology from being used to determine liability. The plaintiffs defended the quotations claiming that since the apologies were made in Japan, and not Ontario, the Apology Act did not apply.

The matter itself was determined on two grounds. The first was that the statements in question were statements of evidence and not facts. As such, they were improper in the claims as claims are to be statements of alleged facts and not evidence. In addition to this somewhat technical legal argument, the judge considered that the apologies were evidence. The rules of evidence are procedural and not substantive. Procedural rules and laws are decided by the law of the place where a matter is heard. Because the action is being tried in Ontario, the laws of evidence, including the Apology Act apply.

Although this would have been sufficient to determine the matter, the judge added a few comments that should make a potential apologizer think twice. His Honour stated: "I do not agree with [the] suggestion that an apology then goes nowhere in the litigation. Rather, while an apology cannot be pleaded, it can be the subject of examinations for discovery. The purpose of the examination would be to discover whether the statement alleged to be an apology is indeed an apology and to determine whether there are portions of the statement that are relevant non-apologetic evidence of liability."

This statement raises the spectre that while the apology cannot be used in court, any part of a larger statement in which the apology is found, could be used as an admission against interest. It is open for an opposing party to use the tools of litigation, including examinations for discovery, to probe deeper into the apologetic statement.

The Lesson: If facing actual or potential litigation, one should think long and carefully before offering an apology as it may be used against you later. It is prudent to seek knowledgeable legal advice to reduce any potential admission of fault.

Coles v Takata Corporation, 2016 ONSC 4885 https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4885/2016onsc4885.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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