Introduced in the legislature on October 7, 2008, Bill 108, the proposed Apology Act, 2009, appears on its face to be aimed at changing the laws of evidence. In fact, it will likely have little effect on trials and much more effect on the communications between potential litigants before a statement of claim is even contemplated. The motivation behind the Act is to reduce the cost of litigation and the price of settlement.
It must be noted that, despite some headlines to the contrary, there is nothing in the proposed legislation that would prevent someone from commencing a claim after they received an apology. The effect is only on the evidence admissible in court. In fact, while the obvious aim of the Act is to encourage and allow those who wish to apologize to do so, the Act does not remove the risk that, having received an apology a potential plaintiff may be encouraged to commence a claim, believing that they have received confirmation that a blameworthy error was made.
History: U. S. and Canada The first apology legislation was passed in Massachusetts in 1986, with Texas and California following suit in 1999 and 2000 respectively. Today, more than 20 states have passed apology legislation that varies in terms of the kind of apology excluded from evidence, the type of cases in which the legislation applies and the period of time in which the ‘offender’ can make a ‘free’ apology.
In Canada, British Columbia was the first province to enact an Apology Act and it has taken a form of protection which is very broad. Unlike the first legislation in the U. S. it defines ‘apology’ and does so broadly:
“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 fault in connection with the matter to which the words or actions relate.
With the above definition, the B. C. legislature adopted the broadest form of protection for apologetic statements from among the models available to it. It also provided that protection in the broadest of contexts in that the legislation applies to both negligent and intentional torts, civil, administrative and criminal proceedings.
After the B. C. Act was passed in May 2006, Saskatchewan and Manitoba followed suit with legislation modeled on the B. C. precedent. Rather than create a new standalone Act, however, Saskatchewan elected to amend its Evidence Act. Ontario Bill 108:
An Act respecting apologies The Ontario Bill 108 is similar to the B. C. Act in that it defines ‘apology’ in the same broad manner. It also explicitly states that an apologizer’s rights under an insurance contract are not affected. In other words, an insurer will not be able to deny coverage for a claim on the basis that the insured has already offered an apology.
An important difference in the Ontario Act proposed by Bill 108 is its application to civil and administrative proceedings only. Unlike the B. C. Act, the Ontario bill states that it does not affect the admissibility of any evidence in criminal proceedings or any proceeding under the Provincial Offences Act.
The Ontario Act will apply to all administrative proceedings, including those under the Regulated Health Professions Act, 1991 and the Dentistry Act, 1991. As a result, for example, a dentist’s statement “I’m sorry I broke your tooth during that extraction” will not be admissible for the purpose of proving professional misconduct during a proceeding before the Discipline Committee of the Royal College of Dental Surgeons of Ontario.
Until recently the proposed Ontario Apology Act, 2009, unlike the B. C. and Saskatchewan legislation, did not refer to the implications of the Act on limitations periods. Following its recent consideration by the Standing Committee on Justice Policy, Bill 108 was amended to say that the Apology Act, 2009 does not affect whether an apology constitutes an acknowledgement of liability for the purposes of extending a limitation period. However, it must be noted that the circumstances in which an acknowledgement will serve to extend a limitation period are primarily related to debt recovery.
Finally, Bill 108 was also recently revised to state explicitly that an apology made while testifying, either in court or at an out of court examination, such as before a tribunal or during an examination for discovery, is admissible during the proceeding.
THE PURPOSE AND EFFECT OF APOLOGY LEGISLATION
Direct effect: A change in the laws of evidence
As noted above, the literal effect of the bill is a change to the laws of evidence; its provisions are most obviously aimed at limiting what is admissible as evidence for the purpose of proving liability.
Generally, the hearsay rule prevents out of court statements from being admitted into evidence for the purpose of proving the truth of the statement. However, there is an exception in Canadian law that allows for the prior statements of parties to the proceeding to be admitted and used as evidence for the truth of the contents of the statement.
For example, a statement by a dentist to a patient that he or she accidentally broke a tooth during a procedure shortly after the incident may, under the current law, be entered into evidence at trial for the purpose of proving that the tooth was in fact broken by the defendant dentist.
With the passing of Bill 108, such a statement will become inadmissible if it is made as part of an apology, for example, “I am so sorry that I broke your tooth.” Though, to be clear, only the above statement would be inadmissible, nothing in the proposed Act prevents the facts, i. e.: that the tooth was broken, from being proven in some other manner.
Another way in which the proposed bill will change the laws of evidence at trial is by eliminating the ability to cross-examine a defendant on their previous statements. Thus, this may prevent an attack on the credibility of the witness in cases where they had previously admitted an error which they now deny.
This latter change may be viewed in particular as a potential disservice to plaintiffs who receive an apology but are not satisfied or would have commenced a claim in any event. It has led some to criticize the legislation, stating that it has the potential to erode public confidence in the courts if a person admits fault but is subsequently found not liable in a proceeding.
Indirect purpose:
Encouraging apologies and discouraging lawsuits
Ironically, the above changes to the admissibility of evidence during the last stage of litigation, the trial, are actually made for the purpose of affecting the communication between parties before litigation is even started. It is anticipated that apology legislation will help parties communicate openly and honestly about what has happened and thereafter move quickly towards a resolution. The real goal is that litigation will be avoided altogether, either because the wronged party is satisfied entirely by a sincere apology or because the offender will, having apologized, be in a position to reach a settlement that is fair and reasonable.
There is some evidence in the U. S. that apology legislation will be successful in achieving these goals, particularly from the Veterans Affairs Medical Center in Lexington, Kentucky. The hospital is often cited as an example of the success of apologies in reducing both the quantity and cost of medical malpractice litigation. After 1987, when the hospital implemented a policy of full disclosure and apology for medical errors, only three cases reportedly went to trial in 17 years, the average settlement rate was lowered to US$16,000 compared to the U. S. average for veterans hospitals of $98,000 and cases closed in an average of two to four months, rather than the national average of two to four years.
Despite these reported results, critics of
apology legislation worry that potential plaintiffs, having received an apology, may be deterred from commencing a claim during an emotionally difficult period, despite their need and right to recover damages from another party. It is also a concern that the disclosure of information may be strategically embedded in an apology so as to maintain some control over its use in the future.
To date, the above criticisms, and the success of the legislation, remain theoretical in Canada as the acts have yet to be considered by a court and there have been no studies released regarding the effect on litigation or settlement.
Apology legislation and the health care industry
Throughout its history, apology legislation has been aimed particularly at the health care industry, a fact which has been explicitly acknowledged during debates in the Ontario legislature. Generally it is largely felt that many medical malpractice actions are motivated by a feeling that there has been a lack of disclosure and a lack of sympathy or empathy on the part of the health care professional or institution. Patients often seek an explicit statement of error as well as a promise and a plan that the incident will never occur again and, often, the very human reaction of administrators and health professional alike is to offer that which will assist the patient in their recovery, piece of mind they seek. For this reason, to the extent that the new Act can deliver on its promises of sincere apologies for known errors, it should be welcomed.
However, it cannot be overlooked that, particularly in cases of health-related adverse outcomes but in other contexts as well, it may not be easy or even possible to apologize because the cause of an individual’s injury is not fully known or understood. For this reason the Apology Act, 2009 should be welcomed, but with a reminder. The purpose of the legislation should be to foster sincere apologies where appropriate and warranted. Simply offering an apology in order to appease someone’s anger or hurt and without fully understanding the how and the why of their injury, in order to attempt to avoid litigation, is not sincere and, in the end, will simply encourage litigation.
Thus the Act, though generally welcomed amongst members of the Bar and the healthcare community in general, presents an interesting contradiction. While a society in which individuals are free to apologize to one another without first fully considering the legal consequences is certainly desirable on a moral level, attempting to craft such a society with legislation highlights at the same time that there are self-interested, i. e.: monetary, reasons for doing so. Ultimately, since individuals are generally good at detecting an insincere apology offered for self-interested reasons, and since such an apology will not go very far in deterring a potential litigant, the Act may be able to deliver on its promise to promote a more civil society.
Jennifer Hunter is an associate at Miller Thomson LLP in Toronto. She practices advocacy in the Health Industry Group providing advice and representation to health facilities and professionals in both civil proceedings and matters before the professional Colleges under the Regulated Health Professions Act, 1991 and before the Ontario Human Rights Tribunal.
The members of the Health Industry Practice Group have extensive expertise in all legal areas of the health sector. The lawyers provide advice and opinion relevant to a broad range of issues arising in corporate law, governance, advocacy, labour relations, real estate and construction.
Miller Thomson LLP is one of Canada’s largest national law firms, with offices in Toronto, Vancouver, Calgary, Edmonton, London, Kitchener-Waterloo, Guelph, Markham and Montral. The firm provides a complete range of business law, advocacy and personal legal services to Canadian and international corporations, entrepreneurs, institutions, governments and not-for-profit organizations.
* Bill 108, an Act respecting apologies was considered by the Standing Committee on Justice Policy on February 26, 2009 and reported as amended on March 2, 2009. The Bill received Third Reading on March 10 & 11, 2009 and was carried on the vote. The Act will come into force on the day on which it receives Royal Assent.
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The motivation behind the Act is to reduce the cost of litigation and the price of settlement
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Apology legislation will help parties communicate openly and honestly about what has happened and move quickly towards a resolution
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The Act may be able to deliver on its promise to promote a more civil society
