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When is an Admission not Admissible? When it is an “Apology”

14 Oct When is an Admission not Admissible? When it is an “Apology”

Originally Published in The Advocates’ Journal, Fall 2014.

A motorist runs a red light and collides with another vehicle. Immediately he exits the vehicle and states “I am so sorry! I caused the accident!” Can the other driver testify about this admission as evidence in a civil trial?  Can opposing counsel question the driver about this admission?

It is traditionally an exception to the hearsay rule that an out-of-court admission by a party is admissible provided that the probative value of the admission outweighs its prejudicial effect.[1] The rationale for admitting admissions was discussed by the Supreme Court in R. v. Evans: “Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his own statements.”[2] The weight given to an admission would depend on the circumstances under which it was made.[3]

Historically, whether or not the “innocent” driver could rely upon an admission made after an accident would consider the above case law. Now, due to the Apology Act, the entire statement – the apology and the admission – would be ruled inadmissible.[4]

Section 2(3) of the Apology Act provides that “despite any other Act or law, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of the fault or liability of any person in connection with that matter.” The definition of an “apology” under the Apology Act is broad. An “apology includes “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.”[5]

The Alberta case of Robinson v. Cragg is one of the few cases in Canada that interprets and applies apology legislation. In that case, the court was asked to consider whether a formal apology letter should be excluded as evidence in its entirety or redacted so that the expression of sympathy or regret and coinciding admission of fault did not remain. The Court allowed the other “facts” from the letter to be entered as evidence but excluded the apology along with the admission of fault.[6]

There are two types of apology legislation. The first governs expressions of sympathy or regret only – “I am so sorry” or “I am sorry that you got hurt”. The second also offers protection for apologies that are accompanied by admissions or statements of fault – “I am sorry, it’s all my fault” or “I am sorry, I ran the red light.”[7] Ontario’s Apology Act is the second type.

Ontario’s legislation is modeled after legislation in British Columbia and the Uniform Apology Act that was created by the Uniform Law Conference of Canada. The British Columbia Ministry of Attorney General Published the “Discussion Paper on Apology Legislation” in 2006 (the “Discussion Paper”).[8]  The Discussion Paper identifies apology legislation as a strategy to promote the early, effective and affordable resolution of disputes.[9] The Discussion Paper notes that the more limited type of apology legislation (that which does not include admissions) has been adopted in more jurisdictions; however, two problems were identified with the more limited apology legislation. First, it was noted that narrow legislation would not be effective in changing the status quo and, second, it would not encourage “true” apologies.[10] These statements were made without detailed analysis of these two perceived shortcomings in the more limited apology legislation.

British Columbia subsequently enacted what was at that time amongst the broadest apology legislation in the world. The only other jurisdictions with similar legislation were New South Wales, and the Australian Capital Territory. Some American states had adopted similar legislation but the scope of the legislation was limited to cases involving medical care.[11] Ontario followed the British Columbia model  in 2009.

If there is any doubt on whether the Ontario Apology Act was intended to be broadly interpreted to include admissions of fault, that doubt is extinguished when you read the debates in the Legislature. Mr. Peter Kormos (now deceased), a former barrister who represented Niagara Centre and Welland in the Provincial Legislature from 1988 to 2011 was most vocal in opposition of the bill. He foresaw the dangers in excluding admissions as evidence if they formed part of an apology. His comments during second reading included:

What are we doing enacting legislation that protects the wrongdoer, who admits not only his or her regret, but liability? What are we doing protecting them from the impact of that admission? It indeed boggles the mind that we would even contemplate that.

Any number of jurisdictions have adopted safe harbour apology legislation, where the regret apology is excluded from evidence by virtue of being deemed inadmissible. This, as I say, is modeled on the broadest—this is a huge net and potentially a very, very dangerous one.[12]

Mr. Kormos continued his zealous advocacy during the Standing Committee on Justice Policy meetings. On February 26, 2009 he stated that:

[T]o me, there’s a big difference between walking up to a pedestrian whose legs have been broken at a crosswalk after I’ve mowed them down, walking up to them and saying, “I’m sorry this happened”—there could be any number of reasons why it happened, none of which would be liability on my part. He or she might have been walking against the red light. I could still be very sorry….Whether it was their fault or mine, I’d still be very sorry. There’s a difference between that and saying .. “I’m sorry that I mowed you down because I’m drunk as a skunk and I went through the red light.” It just doesn’t make sense to exclude that admission of liability as evidence of liability. As you folks know, in the United States there’s a potpourri of apology legislation… a good chunk of it only excludes the bare “I’m sorry,” and I say for good reason.

We’ve created this artificial apology by virtue of section 1. An apology isn’t just, “I’m sorry.” The apology is, “I shot your dog, and I smothered your grandmother, and I’m sorry.”[13]

The Apology Act passed notwithstanding Mr. Kormos’ concerns.

The Alberta case of Robinson v. Cragg can be relied upon by litigators to ensure that statements of fact rather than admission of fault can still be put before the trier of fact. The Alberta legislation also is drafted to protect the broad form of apology and include admissions of fault. Master Laycock in Robinson relied upon an article by Prue Vines to explain why apologies that are mixed with statements of fact are problematic. Ms. Vines commented that “ an apology which includes in it an admission of fact may well be problematic because the court will consider it as evidence relevant to the determination of liability…” Ms. Vines goes on to imply that factual content is not part of an apology and therefore does not have to be kept from the tier of fact. Master Laycock concluded that “Factual statements will be admitted as evidence in court unless excluded by other rules of evidence. Therefore the factual content of the letter, stripped of apology words may be admissible in court. It is the expression of sympathy or regret combined with the admission of fault that the legislature has determined is unfairly prejudicial.”[14]

The difficulty with the Apology Act is that it is a legislative solution to a problem that did not exist. The common law provided mechanisms to exclude apologies and admissions of liability made following an accident if the statements were not reliable. It was open to counsel to argue that an expression of sympathy to an accident victim is not necessarily an admission of liability.

The enactment of the Apology Act now provides a tool for astute lawyers to argue that admissions should be excluded as an apology. These admissions may or may not be accompanied by the magic words, “I’m sorry.”  Again, the definition of an “apology” is an “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.”[15] It is not hard to imagine this definition applying to a person who breaks down in tears while admitting liability to a wrongful act. Why should this potentially highly probative evidence be kept from the trier of fact?

I submit that the common law contained all of the tools necessary to ensure that apologies were not misconstrued and unfairly used against a defendant. Apologies could also be made privileged if made during mediations or settlement discussions. The Apology Act’s lasting effect will not be to promote early settlement of civil disputes by encouraging apologies to be made. The Act will more likely become a tool used by advocates to keep potentially damaging admissions away from the tri

[1] Doherty, Portable Guide to Evidence, 3rd ed at 53, citing R. v. Terry, [1996] 2 SCR 207 (per McLachlin).

[2] Sopinka, The Law of Evidence in Canada, 3rd ed  (Toronto: Butterworths, 2009) at 6.397.

[3] Mirfield, Phipson on Evidence 15th ed. (London: Sweet & Maxwell, 2001) at 28-09.

[4] Apology Act, 2009, SO 2009, c 3 (“Apology Act”).

[5] Ibid at s 1 “Apology”.

[6] Robinson v. Cragg, 2010 ABQB 743 (CanLII).

[7] Rosana Zammit, “How to Say you are Sorry: A Guide to the Background and Risks of Apology Legislation” (2009)(University of Toronto Masters Thesis) at p. 7; British Columbia Ministry of the Attorney General, Discussion Paper on Apology Legislation (January 30, 2006) at p 3.

[8] British Columbia Ministry of the Attorney General, Discussion Paper on Apology Legislation (January 30, 2006).

[9] Ibid at p 1.

[10] Ibid at p 5.

[11] Prue Vines, “Apologies and Civil Liability in the UK: a View from Elsewhere” EdinLR Vol 12 p. 222.

[12] Ontario Hansard, Legislative Assembly of Ontario, May 15, 2008, at 1550.

[13] Standing Committee on Justice Policy, Legislative Assembly of Ontario, February 26, 2009.

[14] Robinson v. Cragg, supra note 7 at paras 10 to 20.

[15] Ibid at s 1 “Apology”.