Ontario, like many other Canadian jurisdictions has passed legislation dealing with the impact of any apology. In most circumstances, saying “I’m sorry” cannot be used in evidence as an admission of liability. This is the main purpose of this statute. Its impact extends not only to civil cases but also administrative proceedings or arbitration. This would cover any remedy process relevant to employment law cases.
It also, coincidentally, prevents an insurance company from denying liability for this reason.
Here is what is defined by this law to be “an apology’. It is:
“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.” (underlining added)
These exceptions do not apply generally to criminal offences under the Provincial Offences Act or the Criminal Code. The apology, for example, in a criminal case of sexual assault would be allowed in evidence in such a case.
Also, this exemption does not apply to an apology given in the course of a civil proceeding, which would include pre-trial discoveries or an affidavit used in such a civil process.
The apology is indeed generally not allowed to be used for liability issues. It could, however, be used by the employer in a case in which the opposing employee alleges serious emotional harm due to the employer’s alleged bad faith conduct. The purpose of this tactic would be to try to minimize or avoid such a claim for mental distress damages.
From the employer’s perspective, words of regret said sincerely can go a long way to ease the feelings of an employee who has been subjected to ill treatment. It may well be a complete solace to a difficult situation. Generally, it should be given freely and without concerns of a subsequent need to “cover the tracks”.
From the contrary view, the employee should understand that an apology cannot be used as an admission of wrongdoing. There is more work still to be done to prove the case.
Get Advice and Know Your Rights
This legislation is not well known. It may have a considerable impact on a civil or human rights case. Both parties should understand its subtleties. For advice on this issue from either side, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
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