Ontario’s recent enactment of its Apology Act, introduced as Bill 108 and passed last spring, aims to allow professional organizations and individuals to simply apologize for incidents gone awry while waiving the confession as a bona fide admission of guilt.
The legislation essentially recognizes the need for people on the receiving end of an alleged wrongdoing to receive an apology - and perhaps a negotiated amount of compensation - from the alleged perpetrator while avoiding litigation.
The hope is that the legislation will lessen the propensity for people to sue for damages resulting from minor incidents and enable more serious cases that end up in the courts to reach settlements expeditiously.
But for years, associations for many professionals along with their lawyers, such as those in the health-care and insurance sectors, have advised practitioners never to apologize. The fear is that the other side would perceive such a move as an admission of guilt leading to litigation or a disciplinary hearing within the governing body.
In passing the legislation last spring, Ontario becomes the fourth province in Canada to enact such laws, joining British Columbia, Saskatchewan, and Manitoba along with a number of U.S. jurisdictions and
Australia.
Yet some industries that lawyers had expected to embrace the legislation haven’t yet adopted policies to acknowledge its advantages that could serve to avoid the cost of litigation in many cases, say lawyers.
“It’s a good piece of legislation with a good purpose,” says Murray Miskin, a lawyer and founder of a firm called ADR Works based outside of Toronto that focuses on alternative dispute resolution as a means to get settlements for clients.
He says the insurance industry is the ideal sector to benefit from the legislation, but so far major insurance companies, along with their lawyers, haven’t been implementing practices in conformity with it.
“They just haven’t yet absorbed the consequences of the act and how it could benefit them,” says Miskin, many of whose clients are people seeking compensation as a result of car crashes. “So the practice of litigation in the area hasn’t changed.”
He says in one matter he handled recently, a client told him that if the driver of a vehicle that caused the crash he was involved in had apologized at the time of the incident, he wouldn’t have sought legal recourse.
But the client instead went to Miskin’s office seeking to launch a lawsuit for his relatively minor injuries because the driver didn’t apologize.
“In most cases, a person would have to be seriously injured” in order to launch a lawsuit for damages, Miskin acknowledges. “But if the other driver doesn’t even say they are sorry, the first thing people think of is [to] sue.”
He suggests insurance companies could benefit by curbing their costs for litigation and even for claims if they informed consumers about the legislation.
“An apology is not an admission, and if people were encouraged to apologize within the provisions set out in the act, it does not mean you’re at fault, and under this act, the apology cannot be used against you in a lawsuit.”
At the time of its passage, the act received formal endorsements by a number of professional organizations, including the Ontario Medical Association and the Ontario Bar Association.
Gary Furlong, a mediator with the firm Agree Dispute Resolution, addressed the advantages of the Apology Act for professional associations at a recent ADR Institute of Ontario, Inc. professional development session.
In an interview with Law Times, he notes that studies in the United States in jurisdictions that have such legislation have shown that incidents of litigation have significantly declined.
“In [medical] malpractice, for example, it has a tendency to prevent litigation,” he says.
“They just saw this [having the potential] to minimize litigation and cut to the chase and deal with the real problem,” he adds, noting that parties in some cases will opt to use alternative dispute resolution avenues to settle their claims for compensation.
For his part, Furlong is pleased with Ontario’s legislation.
“Broadly, I think it’s extremely positive,” he says. “In certain areas, like malpractice or motor vehicles, people will feel less constrained to just apologize.”
He says prior to the act, Ontario had been fostering a culture “where lawyers advise their clients not to admit anything, don’t apologize, and [in which] the impact of forcing the other party to pursue litigation” was the best option.
“This is certainly not intended to avoid going to court in any way, shape or form. But research shows that if a person is killed in a motor vehicle accident, what [families] really want is to prevent that from happening to anyone else and to understand what happened so they can get some closure on it. Money is a secondary motivation in many of those cases,” he says.
“But if they’re stonewalled, they feel they have to get a lawyer, and what this legislation does is free people up in many professions to say, ‘Look, here’s what happened. I’m really sorry, and here are the reasons why.’ So it can have the effect of limiting that person’s need to pursue litigation in a dogged way.”
Furlong acknowledges that most professional organizations routinely advise their members never to apologize for a mistake.
But as an alternative dispute resolution professional, he has attended several speaking engagements with professional organizations since the legislation took effect and has promoted the benefits of the Apology Act.
He suggests professionals stand to save costs and time by issuing an apology for a perceived wrongdoing.
Still, he expects the recognition and implementation of the act by professional organizations to be slow.
“I don’t think it will happen overnight,” Furlong says. “Maybe over the next year or two we will see some change on the front end by professional groups as the word gets around that this is now in place so we should be doing things differently.”