How do you get a Canadian to apologise? Kick them.

It’s a stereotype that Seppos love to trot out in derision (although light-hearted) of their northern neighbours; Canadians love apologising.

If I can be so bold as to speak for the rest of the world, the jokes about Canadian apologising are tired. Most people value the civility of an apology and its role as a social lubricant. I’d certainly much rather reside in a society that apologises too much as opposed to the stereotyped American individualistic approach, which can crudely be summarised as telling people who cross you to self-fornicate.

Most Canadian Law Ever

There was significant coverage and again light-hearted derision when the Ontario legislature passed the Apology Act in 2009. It seemed so perfectly colloquially and quaintly Canadian. “Canadians love to say sorry so much we had to make this law”.

The act was passed to deal with an uptick in civil cases in their courts that were decided on apparent admissions of liability relating to apologies offered at the time of the incident. This is not a unique problem for Canada, as I’ll deal with shortly, but it did strike a particular cultural nerve. Punishing people for apologising when they may not have been liable was a threat to the entire Canadian way of life. There was a fear, as there is constantly in Australia, that they were overly legalising our everyday interactions and becoming too “American”; shorthand for litigious.

The act did not apply universally and the largest exception is for apologies made in the course of the proceedings. The act was designed to operate more to protect members of the public from accidentally admitting liability in instances where they were not aware of the possible interpretation of their chosen words. It should be noted that most other Canadian jurisdictions have similar laws, as do many other parts of the world.

Section 1) “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.

Ontario made it safe to continue apologising to everyone in most circumstances regardless of whether they’ve just hit your dog or if you’ve just merked them in ice hockey…again.

 

Apologising: The Australian Way

The ACT has had laws in place via the Civil Law (Wrongs) Act 2002 (ACT) which have the effect of preventing apologies being construed as admissions of liability. NSW passed similar legislation around this same time but the two remained the outliers in Australia for adopting this approach. ACT and NSW were mostly addressing policy concerns relating to apparent admissions made by insured people that may later affect the rights of their insurer to recover, as opposed to some deep-seated cultural crisis.

Effect of apology on liability etc

(1)     An apology made by or on behalf of a person in relation to an incident claimed to have been caused by the person—

(a)     is not (and must not be taken to be) an express or implied admission of fault or liability by the person in relation to the incident; and

(b)     is not relevant to deciding fault or liability in relation to the incident.

(2)     Evidence of an apology made by or on behalf of a person in relation to an incident claimed to have been caused by the person is not admissible in any civil proceeding as evidence of the fault or liability of the person in relation to the incident.

In Hutchison v Fitzpatrick [2009] ACad TSC 43, two Rugby spectators and old friends had a barney and the one who came off a bit better had refused to visit the other in hospital or apologise on the advice of his solicitors. Master Harper expressed regret at this advice:

 the defendant would not have been placing himself at risk by visiting the plaintiff or proffering an apology to him. If solicitors are still advising their clients not to apologise and not to visit or telephone or write to people who might sue them … this would be regrettable.

Sorry, not sorry.

Outside of the legislative approach, the common law has always distinguished between apologies, admissions of guilt and admissions of fact.

As noted above, many of the Australian cases that concern apologies are in the insurance realm. Most insurance contracts have a clause that can leave a person unprotected if they make an apology or admission of liability (Terry v Trafalgar Insurance [1970] 1 Lloyd’s Rep 524). Legislation that dictates that an apology does not constitute an admission goes a long way to dealing with these problems.

The High Court has restricted the impact of apologies, affecting all jurisdictions whether they pass legislation or not. In the 2003 case of Dovuro Pty Ltd v Wilkins, canola farmers claimed a loss caused by the supply of contaminated seeds. The supply company issued a media release that contained an apology prior to any litigation. The media release and a further follow-up letter made full apologies expressing regret and also admitting that the company “failed in its duty of care“. Now, why a sophisticated client (company) made such a legally dangerous series of statements is bewildering, but so it goes. The company would have been protected under the ACT and NSW legislation regardless, but elsewhere it would depend on the circumstances of each case.

The High Court (save for Kirby J…of course) agreed with the position that admissions that include legal conclusions cannot have the effect of creating liability for negligence if it did not otherwise exist.

…[c]are that needs to be taken in identifying the precise significance of admissions, especially when made by someone who has a private or commercial reason to seek to retain the goodwill of the person or persons to whom the admissions are made…The statement that the appellant “failed in its duty of care” cannot be an admission of law, and it is not useful as an admission of failure to comply with a legal standard of conduct.

The Importance of Apologies

In 2014, the Australian Law Reform Commission (ALRC) recommended that all jurisdictions across Australia should amend their laws so that apologies are not considered to be admissions of guilt.

The ALRC went further than the Ontario analysis and emphasised several other positive benefits from preventing admissions from being construed as admissions of guilt. There were benefits identified for not only the minimisation of litigation and therefore reduction of stress on the courts but also the personal well-being of those who perceive themselves as having been wronged.

In defamation and breaches of privacy, an apology may have a particularly beneficial effect on the well-being of “victims”. The Telecommunications Ombudsman submitted to the ALRC that they find apologies can:

• diffuse tension and create common ground between opposing parties
• foster constructive discussion and even conciliation between parties
• alleviate injury and distress caused to aggrieved parties, and
• reduce the length and severity of disputes.

The ALRC further found that in medical negligence cases, apologies (not court-ordered apologies), can have psychological benefits to plaintiffs.

Codicil

The ACT seems to have hit the right balance.

All empirical analyses seem to confirm that limiting liability from apologies has a wide range of benefits in both a legal and societal context. Associate Professor Prue Vines from Sydney Uni, perfectly summed up the dilemma in the title of her article on this issue (without dismissing the value of the body of her article); apologies in a legal context could be “Cynical Civility or Practical Morality“.  As Prof Vines concludes, differentiating between genuine apologies and cynical gambits to limit liability ignores that only the genuine apology gets punished if we remove the protection. As La Rochefoucauld said: “hypocrisy is a tribute vice pays to virtue.” I’d rather live in a society where apologies are offered too often instead of too infrequently, regardless of the intent.