Often in tort claims prior to the commencement of litigation the party who committed the wrong might make an apology. Sometimes, these apologies are verbal or formal by way of written correspondence.
For example, in the context of motor vehicle accidents the driver who committed the illegal act might, at the scene of the accident express regret or remorse. Or, in the context of a doctor who performed an improper medical procedure might offer a written apology to the patient.
The concern with the apology is that it can be inferred as an admission of guilt.
On March 11, 2009 Bill 108 The Apology Act passed with little media attention. Proponents of the Bill say that it allows parties to make an official apology without fear of legal consequences. They further state, that an apology is important in the healing process and might lead to expedient results in litigation cases.
Apology is defined as:
1. In this Act,
"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.
Providing an apology does not, void, impair or otherwise affect any insurance or indemnity coverage in connection with the matter pursuant to section 1(b).
Section 23.1(3) states:
Notwithstanding any other Act or law, evidence of an apology made by or on behalf of a person in connection with any event or occurrence is not admissible in any action or matter in any court as evidence of the fault or liability of the person in connection with that event or occurrence.
However, there is a new section that has been inserted. Section 4 states:
However, if a person makes an apology while testifying at a civil proceeding, including while testifying at an out of court examination in the context of the civil proceeding, at an administrative proceeding or at an arbitration, this section does not apply to the apology for the purposes of that proceeding or arbitration.
This means that any apology made during the civil proceeding whether they be at examinations or out of court can be used.
The implications of section 23.1(3) are of most importance. That means that in an action where the Defendant is taking a particularly hard line with respect to liability or negligence the apology would not be admissible at trial. That means that the individual who gave the apology could not be cross examined on whether or not they offered an apology. At least that's the way I read it.