Civil Section Minutes 2007

Apology Legislation: Uniform Act and Commentaries

Presenter: Russell J. Getz, Legal Counsel, Justice Services Branch, Civil and Family Law Policy Office, Ministry of the Attorney General, British Columbia

In the fall of 2006, the Civil Section Steering Committee adopted a project to prepare a draft Uniform Apology Act for presentation to the 2007 Annual Meeting.

The project was inspired by the interest in British Columbia’s Apology Act of 2006, which provides that an apology is not admissible in civil proceedings for the purpose of proving liability and that an apology is not an admission of liability. After the B.C. Act was adopted, Saskatchewan enacted virtually identical provisions respecting apologies in its Evidence Amendment Act, 2006. The B.C. and Saskatchewan legislation had their origins in law reform and civil justice reform efforts to improve the means available to people for resolving civil disputes. Research has indicated the benefits of apologies in resolving disputes, the real or perceived ambiguity about the legal effect of apologies, and legislative initiatives on the topic in American and Australian jurisdictions.

The paper discussed the reasons that are usually advanced in favour of apology legislation the issues raised by critics of apology legislation.

However, in general, the paper indicated that apologies are morally desirable and apology legislation encourages apologies that would not be given at all without it. Arguably, the law should let the victims judge their moral (and legal) worth. It was also noted that absence of apology legislation may well work to the disadvantage of people who, for reasons of gender, culture or religion, maybe more prone to apologize than other people.

Two models respecting the scope of protection of apology legislation were discussed: legislation that protects apologies that acknowledge fault or wrongdoing (such as the B.C. and Saskatchewan legislation) and legislation that protects expressions of sympathy only (such as many of the enactments in the U.S. and Australia). Legislation limited to protecting only expressions of sympathy would not be substantially different from the status quo, and leads to uncertainly as to whether a ‘fault admitting’ apology may be used against a party.

Apology legislation may also be distinguished according to the scope of wrongdoing to which it applies. The B.C. and Saskatchewan legislation is not limited to certain types of liability, whereas all American enactments apply only to medical malpractice or accidents, or both. Similarly, in Australia, apology legislation is limited to personal injury claims, negligence or torts generally.

The draft Uniform Apology Act was then presented, as follows:

  • it provides that an apology encompasses statements of admitting or implying an admission of wrongdoing, in addition to expressions of sympathy or regret;
  • it has a broad application, extending to any matter;
  • it provides that an apology is not an admission of legal fault or liability, express or implied; is not relevant in determining fault or liability, and is not admissible in evidence to establish liability;
  • it provides that an apology cannot be used as confirmation of a cause of action in order to extend a limitation period;
  • it provides that an apology cannot be regarded as an admission of liability for the purpose of avoiding an insurance policy; and
  • it protects apologies from being used to establish liability, but does not protect them from being used in the assessment of damages. Whether they would aggravate or diminish damages may depend on the particular case.

As torts are not necessarily confined within provincial or territorial borders and people may do or suffer harm away from home, the human and legal consequences of apologies should be predictable across the country. Thus a harmonized legal approach would be beneficial.

Discussion:

A concern was raised respecting the scope of the definition of “apology” in the draft Uniform Apology Act and a motion was made to amend the definition by adding a reference to an admission of “fact or fault”. The motion was defeated.

In response to a question respecting the experience of those jurisdictions that have apology legislation, it was noted that the legislation has not been in place long in B.C., but it was warmly received by the Bar. Although the legislation has not been in place long in Saskatchewan, if there was a problem with it, it would likely have been raised by now. The Australian delegates noted that their apology legislation was developed in a broader tort reform context; that it has now been in place a few years; and that it was generally supported by insurers and lawyers. NCCUSL had considered a study project where apology legislation was an element, but the time was not right for the project.

RESOLVED:

THAT the Uniform Apology Act and commentaries be adopted and recommended to the jurisdictions for enactment as a stand alone statute or as an amendment to the jurisdiction’s Evidence Act.

The Hague Choice of Court Convention and the Common Law

Presenter: Professor Vaughan Black, Dalhousie Law School

Professor Black provided a summary of the Convention, a description of the ways in which it differs from existing law in common law Canada, some views on whether the scheme and body of the Convention would represent an improvement on that existing law and some recommendations as to whether the Convention should be adopted.

There is no other multilateral treaty on this subject under consideration, in Canada or elsewhere, and that there are no Canadian law reform projects underway that significantly touch on this area of the law. The scope of the Convention is narrow and accordingly most commercial practices and legal issues would not be affected by it. Even in those areas that would be covered by the Convention, the difference between the régime found in the Convention and that presently in place in the common-law provinces in Canada is not great and, based on recent case law, these differences are in fact narrowing. A practical question in determining whether to adopt the Convention, is whether other countries – and particularly Canada’s trading partners – are interested in the Convention. (To date, no states have signed this Convention.)

Professor Black then discussed the history of the Convention, noting that underpinning the Convention are certain assumptions about the value of international trade. The goal of the Convention is to facilitate and promote the inclusion of ‘exclusive choice of forum’ clauses in certain international commercial contracts, by ensuring such clauses are more effective and certain in their effect than they currently are. The Convention is limited in that it deals only with commercial – that is, business to business – contracts; it applies only to international contracts; and it only takes effect where there is an exclusive choice of court clause. Also, the Convention applies mainly to contracts for the sale of goods and services, and there are many exclusions.

Professor Black noted that, to implement the Convention in the common law jurisdictions, some changes in detail, but no fundamental changes in principle, would be required. A few important differences from common law principles were noted.

The main objections to the Convention relate to its narrow scope, lengthy list of exclusions and its rigidity when compared to the flexibility of the common law. Also, it has been criticized as benefiting ‘big business’ as opposed to small businesses. A further concern (largely speculative) is that the Convention could effectively allow certain parties to shift their dispute resolution costs from arbitration to a publicly subsidized system – namely, the courts.

Professor Black concluded that the Convention represents a modest but useful initiative, and appears generally uncontroversial and orthodox. He recommended that:

  • Canada ratify the Convention;
  • Canada refrain from making declarations under Articles 19 and 20;
  • Canada make a declaration under Article 22, dealing with non-exclusive choice-of-court clauses;
  • No declarations need be made under Article 26 at this time;
  • Declarations will be required under Article 28 for any provinces that do not elect to implement the Convention at this time; and
  • Declarations will be required under Article 21 for those provinces that will only implement the Convention if they can prevent its application to specific matters (for example, B.C. has specific legislation precluding enforcement of foreign judgments respecting injury arising from asbestos mined in that province).

Discussion:

Kathryn Sabo (federal government) noted that countries, including Canada, have adopted a ‘wait and see’ attitude to this Convention, and are waiting for the Convention’s Explanatory Report. The NCCUSL representative thanked Professor Black for his excellent report and noted that NCCUSL has appointed a study committee which will hopefully report by the end of the year; also, the policy arm of the American Bar Association has endorsed the Convention. Mexico has opened serious discussions on this Convention, and there are two working groups looking at it. The representatives from Australia also thanked Professor Black for his report and noted that Australia is waiting for the explanatory documents.

RESOLVED:

THAT a working group be established and directed to prepare a uniform implementing Act and commentaries for consideration at the 2008 meeting.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018