Documentation:Torts/Apologies

TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index

Apologies

Apologising to someone you have hurt—whether it was your fault or not—can be a morally good but also legally risky thing to do. An apology is "an expression of sympathy or regret" demonstrating that someone wishes to show "contrition or commiseration". In order to encourage defendants to apologise for causing injury without fear that their apology will be used as evidence of their liability, some jurisdictions have enacted statutes that bar a mere apology or admission of fault from being used as evidence in court to establish fault.

Statutory protection for apologising

The Apology Act
Here, an attorney from League and Williams Lawyers discusses the content and implication of BC's Apology Act.

Apologies legislation emerged in the United States in the late-1990s, designed to "offer some legal protection against malpractice suits for health-care professionals who wish to apologize for preventable harm" affecting their patients.

Apology laws subsequently spread "around the world". British Columbia was the first province in Canada to adopt such legislation. Almost all provinces in Canada now have their own versions of the Apology Act, or other statutes which perform the same function. The rationale behind such apology laws is to facilitate apologies by insulating the apology itself from legal consequences. The hope is that this will reduce reliance on litigation in "favour of more constructive processes of mediation and negotiation" outside of the courts. In the context of healthcare specifically, part of the aim is also to encourage openness between healthcare professionals and patients or families.

British Columbia

The BC Apology Act covers expressions of sympathy or remorse as well as statements which "admit or imply an admission of fault". While an apology and mere statement of fault on its own cannot be used as evidence to establish fault, a factual statement that admits some sort of wrongdoing (e.g., admitting to operating a motor vehicle while under the influence) can still be used in court.

Apology Act – British Columbia
Apology Act, SBC 2006, c 19, ss 1-2.
Definitions 1  In this Act: "apology" means an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate; "court" includes a tribunal, an arbitrator and any other person who is acting in a judicial or quasi-judicial capacity. 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 constitute an express or implied admission of fault or liability by the person in connection with that matter, (b) does not constitute an acknowledgement of liability in relation to that matter for the purposes of section 24 of the Limitation Act, (c) does not, despite any wording to the contrary in any contract of insurance and despite any other enactment, void, impair or otherwise affect any insurance coverage that is available, or that would, but for the apology, be available, to the person in connection with that matter, and (d) must not be taken into account in any determination of fault or liability in connection with that matter. (2) Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability of the person in connection with that matter.

Some examples

Under the Apology Acts, courts do not consider evidence of an apology or even an admission of fault or wrongdoing as conclusive evidence when determining fault.

Motor vehicle accidents

Commonly a party to a motor vehicle accident might apologize to another individual involved in the accident immediately after the collision. In British Columbia, such apologies or admissions of fault are irrelevant when determining fault in court. The court considers other evidence to independently make a determination of fault.

In Chauhan v Welock, the defendant had rear-ended the plaintiff at an intersection. In such situations the rear driver is typically presumed at fault. The defendant, who was the rear driver, immediately got out of her car after the collision and told the plaintiff "I am so sorry". The defendant also apologized again moments later. In addition to stating that the Apology Act effectively negated these statements as an admission of fault, the court noted that such statements are just the "natural post-accident utterances of a decent and sensitive person". Considering other evidence before the court (such as dash-cam footage), the plaintiff was found at fault since she suddenly stopped at an intersection with a green light in a way that was "objectively unreasonable and unforeseeable to those around her".

In the news
The Pope's Apology
In 2022, Pope Francis, head of the Catholic Church, issued an "apology to Indigenous peoples for abuses in the country’s church-run residential schools". However, both survivors and the Canadian government criticized the apology for lacking mention of the abuses suffered by Indigenous children. Some commentators pointed out that due to apologies legislation, the apology was unlikely to have legal ramifications.

Government apologies

Governments sometimes apologize to people who have been negatively impacted by state actions, such as those who are wrongfully arrested or imprisoned.

In 2021, Black Canadian and retired judge Honourable Selwyn Romilly was wrongfully arrested and briefly detained by police in Vancouver. Romilly was misidentified for a wanted suspect. The arrest was only made "because of the colour of their skin", as aside from race Romilly "matched no other part of the suspect descriptions". In the aftermath of this incident, both the Vancouver Police Department and the Mayor issued a public apology to Romily, which notably did not count as an admission of legal liability owing to BC's Apology Act.

Manitoba's Attorney General issued a "full and unqualified" apology in June 2000 to Thomas Sophonow, a man who spent four years in prison when he was wrongfully accused of a 1981 murder. Although legal proceedings led to Sophonow's acquittal, it wasn't until 2000 that a police investigation determined that he was "in no way involved" in the crime. Soon after the apology, Sophonow also received $2.6 million in compensation for his false imprisonment.

Courts may take into account the presence or absence of an apology when determining the amount of types of damages which are awarded to the plaintiff. In Shanthakumar v. CBSA, the court noted that defendants (various government and police agencies) had collectively "refused to apologize" to the plaintiffs "for the last 10 years", despite such an apology not affecting their liability per Ontario's Apology Act. This failure to "accept the significant consequences of their actions" contributed to the court deciding to award punitive damages.

Discussion questions

• In the absence of an Apology Act, should courts generally consider apologies or confessions of wrongdoing as conclusive determinations of fault?
• What value is there in apologies from government bodies for wrongdoing by the state? Does requiring or encouraging such apologies serves to dissuade such wrongdoing in the future?
• Why do you think the Apology Act in Ontario applies to tort claims, but does not grant immunity to an "apology" when it is being used to prosecute a criminal or regulatory offence?