Q: I had an accident and damaged a neighbor’s property. I’d like to say I’m sorry but my lawyer has cautioned against it, saying that could be seen as an admission that I’m in the wrong. What can I do?
A: That is not bad advice. Generally speaking, any admission tending to show you think you were in the wrong can be used against you later.
It is not determinative of fault, but such statements usually do not help you if you become involved in a legal matter.
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However, there is one exception that may be available to you – apology legislation.
Some provinces have passed laws that permit individuals and organizations to apologize for things that have gone badly, such as an accident.
The statement or apology cannot be used against you later as a “statement against interest,” which is essentially a confession or admission of liability.
The idea behind this law is that being able to apologize without harming your legal position will help maintain good relations between people and will result in fewer lawsuits to resolve such incidents.
In your situation, for example, if your neighbour receives a genuine apology, he may be less likely to sue you for any loss or damage he has sustained.
The new law also allows you to offer compensation for any damage caused to the other party.
Making the apology and offering money or other form of compensation cannot later be used against you.
The legislation takes into account that people who have done wrong or made a mistake often feel the need to personally apologize for it. It also takes into account the corresponding need of a “victim” to receive an acknowledgment of fault from the other side in the form of an apology.
By my research, four Canadian jurisdictions have this type of apology legislation – British Columbia, Saskatchewan, Manitoba and Ontario – as well as more than 20 American states.
Canada legislation has common key attributes.
An apology “does not constitute an express or implied admission of fault or liability,” nor does it recognize that a “cause of action” (legal right to sue) exists.
Studies that led to this legislation have confirmed that admission of being wrong will often avoid lawsuits.
Most of the matters where this happened were minor, but some were significant.
For example, a doctor’s admission that mistakes had been made during surgery led to an early resolution of a dispute.
Traditionally, a doctor’s legal counsel, similar to your own lawyer, would never have advised a physician to admit a mistake. Even now, in provinces where this law exists, lawyers are reluctant to follow it.
As with any new law, there are concerns.
Some commentators feel public confidence in the legal system will be adversely affected if people can acknowledge their wrongdoing but still be found not liable after a trial. As well, insincere apologies might take place, purely for reasons of legal strategy.
However, it was ultimately determined that the benefits outweigh such risks.
Despite this legislation, lawyers and members of the general public have been slow to take it up. People are still reluctant to make apologies that can be construed as admissions of fault.
As Elton John once said: “Sorry seems to be the hardest word.”
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
