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Even when presented with a very positive compensation package, some clients struggle with ending the litigation process.  In many instances, they have not had the opportunity to have their story told or the wrong they have suffered has not been publicly recognized.

Three jurisdictions in Canada have now introduced “apology legislation” which will allow a party an opportunity to offer their regrets while having the protection of legislation that this expression of sympathy will not be admissible in court as evidence of fault or liability: B.C., Manitoba and Saskatchewan.

The key legislative provisions in the B.C. Apology Act provide as follows:

“s. 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 a confirmation of a cause of action in relation to that matter for the purposes of section 5 of the Limitation Act,

“(c) does not, despite any wording to the contrary in any con      tract 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.”

Apology legislation is not new, and statutes of this nature can vary significantly in each area.

For example, some jurisdictions have adopted what is referred to as “safe-harbour” legislation where an expression of sympathy or regret is excluded from evidence but the legislative protection does not extend to situations where there has been an admission or expression of fault. Some American jurisdictions have also enacted legislation which excludes admissions of fault as evidence in certain types of proceedings, but not in all matters.

Some form of apology legislation has been implemented in more than 20 American states as well as in Australia. 

This legislative trend is the result of the growing body of evidence that apology laws assist in a reduction in both the number of and the time required to settle lawsuits. Evidence generated on American and Australian doctor’s apologies show improved patient satisfaction, a decrease in repeat errors and reduced cost and frequency of malpractice settlements. 
The decision to apologize has often been wise where, for example, a corporation faces harm to its reputation as the result of a product liability issue or because it has caused environmental damage. Susan Alter, in her report for the Law Commission of Canada, concludes that “for a victim, an apology is often considered to be the key that will unlock the door to healing.” 

While the benefits of this legislation are clear, concerns exist as well. This is especially true regarding the comprehensive apology legislation that has been adopted in western Canada. In a 2006 discussion paper, the B.C. Ministry of the Attorney General identified some of the difficulties associated with this type of legislation, including the following:

• Public confidence in the courts may be affected if a person admits fault but is subsequently found not liable in a proceeding;

• Insincere and strategic apologies may be encouraged; and

• Apologies might create an emotional vulnerability in some plaintiffs, who may, thereafter, accept settlements that are inappropriately low.

As an additional concern, we must consider if apology legislation should be extended to intentional acts. For example, should the perpetrator of a sexual assault be provided the protection of legislation if they subsequently admit their actions outside of the litigation process? Not only does this challenge the integrity of the court process, but it may also revictimize the plaintiff. 
These issues may require the intervention and guidance of the courts which will, in turn, shape the legislation to fit the interests of the community.

For most litigators, an admission of any nature runs contrary to their best advice and causes significant alarm. However, by recognizing the positive impacts that may come from an expression of regret, traditional views should be revisited.  As most ADR practitioners would indicate, much is to be gained by an acknowledgement of fault.

For many parties, an expression of sympathy or remorse often opens the door to communication and assists the parties in building an agreement that best meets their interests. For parties truly seeking a resolution to their dispute, apology legislation is just one more tool that will assist in this endeavour.

Ellen Desmond is counsel to the New Brunswick Energy and Utilities Board, and is a sessional lecturer in dispute resolution at the University of New Brunswick’s  faculty of law. She is the past chair of the national section for Alternative Dispute Resolution, Canadian Bar Association and continues to chair the New Brunswick section.