Canadians are famously polite and apologetic – so much so that a reflexive ‘sorry’ has become as Canadian as maple syrup, poutine and multi-coloured currency. One need only think of the stereotype of the Canadian who walks down the street and apologizes when someone bumps into them to see how ingrained expressions of remorse are in our national psyche. It is only fitting then that Ontario has an entire piece of legislation dedicated to them – the aptly named Apology Act.
A relatively new piece of legislation, the Apology Act was the subject of Simaei v. Hannaford, 2015 ONSC 5041, where Master Short had to determine whether an apology could be properly pleaded in a statement of claim or whether it ran afoul of the Rules of Civil Procedure. Under Rule 25.11 of the Rules, a court may strike a portion of a statement of claim where it scandalous, vexatious or an abuse of process. In layman’s terms, parts of a statement of claim can be struck if they are immaterial to the lawsuit.
In Simaei, the plaintiff wished to plead an apology that she had received from her employer after her employment had been terminated. In essence, she wanted to argue that the apology was an admission that the plaintiff had been wrongfully dismissed and that she was entitled to damages. The defendant objected, and argued that the provisions of the Apologies Act and Rule 25.11 prevented the plaintiff from pleading the apology. Master Short agreed.
Section 2 of the Apology Act states that any apology made does not constitute an admission of express or implied guilt or liability and any evidence of an apology is not admissible in any civil proceedings. Reviewing the legislative history, Master Short noted that the legislation was introduced in 2009, and was originally supported by members of the healthcare field. Historically doctors and nurses were reticent to apologize to patients out of fear that the apology would constitute an admission of guilt in a lawsuit. Many of these professionals felt that apologies would begin to heal any harm done to a patient, but felt stifled from doing so.
Given the terms of the Act, Master Short held that the alleged apology was rendered meaningless in law – it could not be used as evidence of an admission of wrongdoing, or anything at all. Given that the apology was legally immaterial to the lawsuit, it had no place in the pleadings and should be struck under Rule 25.11.
While an interesting read, Simaei highlights an important lesson about the place of apologies in our civil justice system. The Act has rendered apologies legally meaningless. But in doing so, it has made them practically that much more important. By shielding them from use by lawyers and scorned litigants, it encourages the act of apologizing, which can be a powerful tool in preventing litigation in the first place. In many cases, prospective plaintiffs do not want to litigate; they don’t want to expend the time, money and energy pursuing a judgment. They simply want an apology, an admission that they were wronged and that the wrongdoer accepts fault. This is a powerful consideration that lawyers and litigants alike should heed to early on when litigation is contemplated. Perhaps a simple apology can avoid a lawsuit entirely, and perhaps Elton John was wrong: maybe sorry doesn’t have to be the hardest word after all.