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Defendants’ apologies found not admissible in civil proceedings or pleadings

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The Apology Act is lesser-known piece of Ontario legislation which came into force in 2009. The Act allows defendants in a civil proceeding to communicate sorrow or regret to the other party, without their apology being used against them later in court.

Under the Act, “an apology made by or on behalf of a person in connection with any matter”:

  • does not constitute an admission of fault or legal liability;
  • will have no effect on insurance coverage or indemnity, despite any wording to the contrary that might be put in an insurance contract; and
  • will not be taken into account in any civil proceeding, administrative proceeding, or arbitration as evidence of fault or liability.

The purpose of the Act is to prevent or shorten litigation by recognizing that sometimes a simple apology can go a long way towards diffusing a conflict.

The exception to this protection is where an apology is made by a person while testifying in a proceeding; where they have put it on the record themselves, a defendant’s apology will be admissible evidence in that proceeding.

Otherwise, not only can an apology not be relied on as an admission of guilt, the recent decision Simaei v. Hannaford stated that even the mere fact that an apology took place cannot be in a plaintiff’s pleadings.

In Simaei, the plaintiff attempted to plead in her statement of claim that her former employer’s apology after her dismissal was an admission of wrongdoing on their part. However, as a result of the Act, an apology for an employee’s dismissal cannot be held against the employer as evidence of the wrongfulness of that termination, nor used to any impute any other legal liability. Beyond this, it was determined that no mention of the apology can even be made in the plaintiff’s pleadings.

The basis for this is twofold. First, it is not permissible for a plaintiff to raise facts in a statement of claim “that go nowhere.” Since the apology was not admissible evidence in court, mentioning the apology in a pleading is a fact that will go nowhere. Second, stating in a pleading that a defendant apologized could prejudice the defendant in subsequent proceedings, despite no further evidence of the apology being introduced.

Overall, the Act provides a blanket protection for civil defendants from having their words turned against them later in an action.

It is important to note that, while a person expressing regret is protected from imputed liability on the basis of their apology, this is the case in civil matters only. The Apology Act has no bearing on the admissibility of a statement in a criminal proceeding or a proceeding under the Provincial Offences Act. An apology can be used as evidence of guilt in the criminal context.

Michelle Stephenson, Student-at-Law and Marty Rabinovitch

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Devry Smith Frank LLP

Employment and labour lawyers at Devry Smith Frank LLP
Devry Smith Frank LLP (DSF) is the largest full service law firm in Toronto outside of the downtown core. They offer a broad range of legal services to individual, business and corporate clients in most areas of corporate and personal law. Their firm’s employment law group covers a broad spectrum of HR law, including employment and labour law, occupational health & safety, human rights, workers’ compensation and much more.Lawyers at Devry Smith Frank LLP lead by Marty Rabinovitch B.A.H., LL.B. will be covering issues surrounding employment and labour law and human rights on First Reference Talks. They also provide training, seminars and conferences on the above topics. Read more .
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