The aim of this fairly recent piece of Ontario legislation, writes Singer, “was to allow a potential defendant to express remorse or regret without fear of such comments precluding a defence on the merits and with no impact on a determination of liability. The legislature thought it might encourage emotional bridge building between aggrieved parties that could have the positive effect of either preventing or circumscribing litigation.”
In the recent case of Simaei v. Hannaford, the plaintiff wished to use an apology from her former employer “as a quiver in the arrow of her case,” says Singer. However, the defendant’s lawyers argued the court should strike that part of the statement of claim as being prejudicial to her, as well as vexatious and an abuse of process.
Master Donald Short agreed, citing the provisions of the Apology Act that mandate that a party cannot use an apology made in good faith against the other side in the context of the litigation, and also suggested the court strike the portion of the pleading referring to the apology.
“In light of the wording of the Apology Act, pleading the apology goes nowhere because the provisions state that a party cannot use the apology in the litigation as an admission of liability. Further, the trier of fact cannot consider it in any determination of fault,” writes Singer.
The lesson for lawyers to draw from this decision, says Singer, is the discussion by Master Short of this relatively unknown statute.
“Specifically, the act essentially allows a client in any potential civil case where a putative plaintiff feels aggrieved or possesses a level of moral superiority to strategically issue an apology in an attempt to diffuse the situation. The master, in obiter, underscored the virtue of a strategic apology when he noted: ‘My personal involvement in mediation, arbitration has provided me with examples of the value of an apology in reaching a mutually acceptable out-of-court resolution.’”
Singer, who concurs with Short, says that in his experience over more than two decades of litigation, “a properly timed and genuine expression of remorse can avert a lawsuit or mitigate the eventual cost to the defendant of settling the lawsuit.
“Plaintiffs often just want someone to hear and understand them. As counsel for a potential defendant or for you if you are dealing with an unsatisfied client, Short reminds us that the Apology Act gives us a very useful tool. Used effectively and, most importantly, with authenticity and compassion, an apology may save thousands of dollars,” writes Singer.