“Is it too late now to say sorry?”

stencil.default (4).jpgTo quote a famous Canadian, “is it too late now to say sorry?” There are countless songs, movies, and novels with situations about apologizing. There are numerous books and blogs about how to apologize, when to apologize, and why a person should apologize. It might be good material for a catchy song, but is apologizing always a good idea?

There is an interesting piece of legislation in Ontario that you may not be aware of: the Apology Act, 2009. You can read it hereTo summarize, the Apology Act allows people to apologize before a proceeding is commenced and the apology cannot be used as evidence of fault or liability in a later proceeding in Ontario (with a few exceptions). It also prevents insurers from denying coverage when one of their insureds has apologized.

An apology is defined as:

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.

It is important to remember that an apology cannot be used to prove fault or liability. It can be used when assessing damages. Also, evidence discovered by the other party as a result of the apology is admissible. For example, if a condominium’s board admits during an apology that they were responsible for removing snow and ice from the walkway, but do not admit that the lack of salt caused the injured person to slip and fall, the Act would not stop the injured person from using the condominium’s admission as the basis for expert evidence to show that the failure to remove snow and ice made it more likely that the injured person would be injured. Significantly, the Act also requires insurers to provide coverage to their insureds who admit liability from any claim for which their insurance would cover, even if the policy has language that says otherwise.

As mentioned above, it is important to note that there are exceptions to the prohibition against using an apology as evidence of fault. First, an apology given while testifying during a civil proceeding, administrative hearing or arbitration (i.e. during discoveries or cross-examination) is not protected. Second, an apology may be used as evidence in quasi-criminal and criminal matters to prove fault, subject to other legal principles that may render the apology inadmissible. Third, acknowledging a debt during an apology will restart the limitation period for any claim on the debt so that the limitation period will start on the date the apology was made, not when the debt arose.

While a board or property manager may have the urge to apologize when an owner or other person is injured on the property, he or she should be careful about the content of the apology, when it is made, what it says etc. as it could have unintended consequences for the condominium in any future lawsuit commenced by that injured person. I would avoid admitting any fault for the injuries sustained (i.e.”I’m sorry that you slipped on the walkway and fell”). Even acknowledging their injuries in an apology can be problematic. Given the possible consequences, it is a good idea to speak with the insurer and/or its lawyer before making any apologies.

As a note about the blog in general, I’ve decided to spice up the posts on this blog in 2017. Instead of always writing about cases or the Condominium Act, 1998, I’m going to devote some time to other topics, like practical tips for common condominium problems or other legal principles or laws that may be of interest to condominium owners, directors, and managers. If you have any general questions or obscure laws that you’d like me to write about, please let me know!