ONLY IN ONTARIO – SAYING "SORRY" CAN LIMIT OR ELIMINATE THE DAMAGES YOU PAY FOR DEFAMING ANOTHER.
In Ontario, unlike any other jurisdiction to my knowledge, we’ve made the act of saying “sorry” part of our legal system, for which there are legal ramifications, both for saying it and for not saying it.
In fact, we’ve made it legislation; namely, Ontario’s “Apology Act” (the “Act”).
This is uniquely an Ontario-only legal initiative.
Before the Act, if an apology were made, such as in a defamation case, that apology could be used against the alleged defamer in Court, including to prove the defamation itself and the harm it must have caused.
Now, an “apology” is legally defined as “an expression of sympathy or regret” and not “an admission of fault or liability in connection with the matter to which the words or actions relate.”
Before the Act was passed, an “apology” statement could technically be construed as an admission of your guilt or wrongdoing.
The Act is great Ontario law, because now we can say “sorry” without fear, legally speaking.
In fact, in a defamation case, for example, making an apology often impacts the legal case, or least may reduce the damages awarded by the Court.
Making an apology impacts other types of cases, too, legally, so there is always advantage in considering making an apology and, if so, the maker need not be worried that it would legally be held against he or she – it can only help.
The Act is fairly short and straightforward – the key parts are highlighted below.
Apology Act, 2009
S.O. 2009, CHAPTER 3
Consolidation Period: From April 23, 2009 to the e-Laws currency date.
1. In this Act,
“apology” means an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate. 2009, c. 3, s. 1.
Effect of apology on liability
(a) does not, in law, constitute an express or implied admission of fault or liability by the person in connection with that matter;
(b) does not, despite any wording to the contrary in any contract of insurance or indemnity and despite any other Act or law, void, impair or otherwise affect any insurance or indemnity coverage for any person in connection with that matter; and
(c) shall not be taken into account in any determination of fault or liability in connection with that matter. 2009, c. 3, s. 2 (1).
(2) Clauses (1) (a) and (c) do not apply for the purposes of proceedings under the Provincial Offences Act. 2009, c. 3, s. 2 (2).
Evidence of apology not admissible
(3) Despite any other Act or law, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of the fault or liability of any person in connection with that matter. 2009, c. 3, s. 2 (3).
(4) However, if a person makes an apology while testifying at a civil proceeding, including while testifying at an out of court examination in the context of the civil proceeding, at an administrative proceeding or at an arbitration, this section does not apply to the apology for the purposes of that proceeding or arbitration. 2009, c. 3, s. 2 (4).
Criminal or provincial offence proceeding or conviction
3. Nothing in this Act affects,
(a) the admissibility of any evidence in,
(i) a criminal proceeding, including a prosecution for perjury, or
(ii) a proceeding under the Provincial Offences Act; or
(b) the use that may be made in the proceedings referred to in subsection 2 (3) of a conviction for a criminal or provincial offence. 2009, c. 3, s. 3.
Acknowledgment, Limitations Act, 2002
4. For the purposes of section 13 of the Limitations Act, 2002, nothing in this Act,
(a) affects whether an apology constitutes an acknowledgment of liability; or
(b) prevents an apology from being admitted in evidence. 2009, c. 3, s. 4.
5. Omitted (provides for coming into force of provisions of this Act). 2009, c. 3, s. 5.
6. Omitted (enacts short title of this Act). 2009, c. 3, s. 6.
June 24th, 2020
Posted in Litigation