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Commercial Litigation

Don't be sorry for saying sorry

Parties to a dispute must take care when saying sorry for their actions, Toronto litigator Isabelle Eckler tells

Although Ontario’s Apology Act prevents expressions of sympathy or regret from being used as evidence of liability in civil actions, Eckler, an associate with Shibley Righton LLP, points out that the Act only applies in certain situations, leaving litigants potentially sorry they ever spoke.

“An apology by or on behalf of someone is inadmissible in a civil proceeding or arbitration as evidence of the person’s fault or liability in connection with the event,” she explains. “But individuals have to be very careful about the context in which they apologize.”

For example, Eckler says an exception written into the law means that apologies elicited during examinations for discovery or in the course of trial testimony are not covered and may expose the individual to a finding of liability.

In addition, the “Apology Act does not affect the admissibility of evidence in a provincial offence or criminal matter,” she says.

“Something also worth considering is that courts can separate statements of fact, which are potentially admissible, from apologies,” Eckler adds.

She says the Act was passed in 2009 in response to concerns in the health-care field, where insured professionals were largely unwilling to issue apologies following medical incidents for fear their words would be used against them in a subsequent medical malpractice lawsuit.

“The Act is still most useful in those types of cases, where there is a serious breach of trust or confidence. Expressions of regret can allow parties to achieve a sense of closure that financial remedies may not be able to provide,” Eckler says.  

As a result, she says an apology tends to be most effective in cases that involve parties with close personal relationships or where medical malpractice or personal injury could be alleged. Still, that doesn’t mean an expression of sorrow won’t be welcome in a dispute of a more commercial nature.

 “It’s up to the parties to assess whether it would be useful for them,” Eckler says.

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