Canada: Safe To Apologise: New Law In British Columbia

Last Updated: November 8 2006
Article by Barry Leon and Dale Barrett

Originally published in Mediation Committee Newsletter, September 2006

The province of British Columbia is the first Canadian jurisdiction to introduce a law providing a safe harbour for apologising. The BC Apology Act1 took effect on 18 May 2006.

The Act protects apologies made in connection with any matter, other than in a criminal context, and deems them inadmissible as evidence regarding the fault or liability of a person in any British Columbia court, arbitration or other tribunal proceeding. The Act states that an apology does not constitute an admission of fault or liability and must not be taken into account in the determination of fault or liability in connection with the matter to which it relates.

‘Apology laws’ have existed only since the late 1980s. They have been implemented in more than 20 US states2 as well as in Australia. There is growing evidence that apology laws lead to a reduction in both the number of lawsuits and the time required to settle lawsuits in which apologies are made. In contexts outside formal apology legislation, such as the pilot project in Illinois – the ‘Sorry Works’3 programme, results have been impressive,4 demonstrating that providing a safe harbour for apologising is a pragmatic approach to dispute resolution. The BC Apology Act takes the more aggressive form of apology legislation, as seen in jurisdictions such as Arizona,5 Colorado,6 Oregon7 and New South Wales,8 where not only expressions of sympathy and benevolence are protected but also fault-admitting apologies. This distinction between apologies that admit fault and those that do not is the major difference between the various apology laws. To date, only British Columbia and jurisdictions such as those mentioned above have gone so far as to protect apologies that admit fault.

Perhaps the first way that people learn to resolve disputes, at least in many Western cultures, is through apology. Children are told by their parents and teachers to apologise for something they have done wrong. However, as adults, and especially in business dealings, people tend not to apologise when a conflict arises. Rather, they tend to engage in adversarial dialogue – often through lawyers. First and foremost, people are taught to protect themselves. As lawyers, we counsel our clients not to do or say anything that could be argued to be an admission of liability. Insurance companies tell their insureds not to apologise or take responsibility after an accident. Risk managers at hospitals advise doctors not to apologise after making a medical error. The tendency is to deny responsibility whenever possible. Research shows that this leads to disputes being litigated when they may have been resolved or mitigated through an apology. Daniel W Shuman states, ‘Tort plaintiffs often claim that what they really wanted was an apology and brought suit only when it was not forthcoming ...’9 But many remorseful people and organisations simply cannot apologise without the risk of admitting legal liability. As a result, lawsuits routinely end in settlements with no party accepting responsibility.

In various contexts, apologies have been shown to help prevent or mitigate lawsuits, rather than create a liability problem, and to decrease transaction costs associated with settlements and speed up the settlement of disputes. For example, in Japan, where lawsuits are much less common than in North America, in 1982 a Japanese airline president completely avoided lawsuits by apologising personally to the families of victims involved in a plane crash resulting from a psychologically-troubled pilot.10

In the public arena, groups that have been harmed by government action, or inaction, frequently have an apology on their shortlist of demands. This phenomenon can also be seen in cases of institutional abuse, such as that described in 2000 by the Law Commission of Canada in ‘Restoring Dignity: Responding to Child Abuse in Canadian Institutions’.11 In this situation, the victims wanted an apology to help repair the damage that had been done. The Ombudsman of Tasmania, in interviewing adults who complained that as children they had been abused while in state facilities, found that most were seeking an apology in addition to information, counselling and an acknowledgment of the abuse.12 The Truth and Reconciliation Commission in South Africa demonstrated the power of an apology. Public figures, such as former US president Bill Clinton after the Lewinski affair, have also utilised the power of an apology to regain the trust of constituents.

Apologies are particularly opportune in disputes that have a personal element. They can go a long way to changing the dynamic between the parties and to helping a person feel whole again, and are thus well suited to employment disputes, personal injury claims, medical malpractice and other comparable disputes. In fact, it is specifically in the arena of medical malpractice that many apology laws have been introduced.

Steven Keeva, a Chicago litigator who has suggested that apologies help avoid trials, cites US research that indicates that about one-third of medical malpractice lawsuits could have been prevented if doctors had apologised to their patients.13 This was similar to the finding of a 1994 study in Britain that demonstrated the effect of a complete explanation and apology by doctors in possibly preventing medical malpractice suits.14 In addition, a study of malpractice suits arising from prenatal injuries showed that 24 per cent of claimants in Florida commenced lawsuits when ‘they realised that physicians had failed to be completely honest with them about what happened, allowed them to believe things that were not true, or intentionally misled them’.15 According to Susan Healey, president of the Ontario Association for Family Mediation, ‘An apology is a pretty powerful thing’, and can substantially reduce the time taken to reach a settlement.16 This is illustrated by the practice at the Veterans Affairs Medical Center in Lexington, Kentucky. In 1987 the medical centre adopted a policy to be open and honest with patients after the commission of medical errors, and to provide a swift apology and settlement offer. The programme, which fosters settlement, ‘reduced [the VA Medical Center’s] claims payments from among the highest in the 178-hospital VA system to one of the lowest’, even though the rate of malpractice did not decline.17 Said the hospital’s chief of staff, ‘If everybody did this nationwide, every patient who was injured would get fair compensation, the lawyers would get nothing, and you wouldn’t see $12 million verdicts.’18

Even in commercial disputes, it is common for the people involved to have an emotional reaction to the other party’s conduct. They may feel angry, disappointed, betrayed or cheated. They often continue to engage in the management of the dispute and to make decisions that are influenced by their personal emotions. In these disputes, especially in the context of relational contracts (though even in transactional contracts), apologies may mitigate – even if alone they do not resolve – the dispute.

'The apology as object of exchange may have a value equal to the apologiser’s savings of damage payments and/or transaction costs.'19 Apart from their possible value as objects of exchange, apologies may accomplish the desired result by shifting the ‘power and shame balance’, whereby the victim feels empowered by being put in a position to accept an apology and the wrongdoer takes on the victim’s ‘shame’ in the process. It appears that often what victims want in addition to, or even instead of, financial compensation are apologies. As Hiroshi Wagatsuma and Arthur Rosett express it, ‘while there are some injuries that cannot be repaired just by saying you are sorry, there are others that can only be repaired by an apology’.20 And they point out that apology ‘is a social lubricant used every day in ongoing human relationships’.21 Susan Alter, in her 1999 report for the Law Commission of Canada, said, ‘For a victim, an apology is often considered to be the key that will unlock the door to healing.’22 Victims particularly want an apology where the real harm is non-pecuniary and thus difficult to measure in monetary terms. In the defamation context, apologies are often sought and are a key component of many settlements.

In situations in which a corporation’s conduct has resulted in highly-publicised and widespread harm – for example, product defects and environmental damage – crisis management experts counsel early apologies. When the potential harm to a corporation’s reputation and brand is significant, the potential liability-admission consequences will be pushed aside in favour of a speedy, decisive and public apology, often given by the CEO. Particularly in jurisdictions with juries and punitive damages, the decision to apologise may also be a wise tactical decision for future lawsuits that are inevitable.

Apologies have historically played a key role in repairing relationships and have occupied a central role in dispute resolution. In the context of mediation, in which apologies are not uncommon, Shuman says, ‘Mediators report that apologies often help to resolve disputes; parties who receive apologies are often more willing to settle than those who do not.’23 Mediation provides a safe forum for apologies in many jurisdictions because what occurs in a mediation is protected through several means: as an extension of the concept of ‘without prejudice’, through statutes such as the Uniform Mediation Act in the United States, through confidentiality and subsequent non-use agreements and through common law privilege as delineated by the application in Canada of the Wigmore rules of evidence.24

As has been remarked, ‘An apology may be just a brief moment in mediation. Yet it is often the margin of difference, however slight, that allows parties to settle. At heart, many mediations are dealing with damaged relationships. When offered with integrity and timing, an apology can indeed be a critically important moment in mediation.’25

It must be remembered that the purpose of laws that exclude from evidence statements made in mediation is, as Jonathan Cohen says, ‘to facilitate a conversation between the parties, a conversation that can help them transform the dynamic between them, which could help them resolve the dispute’.26 Deborah Levi notes, ‘According to some advocates of mediation, the emphasis on communication and voluntariness renders mediation more likely to resolve disputes than adversarial-style litigation.’27

If made outside mediation, or some other ‘without prejudice’ context, apologies will be admitted into evidence (assuming they are uncoerced utterances).28 As a result, if litigation is a possibility, a prospective defendant will be concerned about the repercussions and will be reluctant to apologise. The defendant is thus deprived of the opportunity to use an apology to mitigate or resolve the dispute at an early stage. Once most lawsuits get to the point of mediation, the opportunity for an effective apology has often been lost, underlining the importance of using the apology as a tool at the earliest stage possible in the resolution of the dispute. A strategic benefit of the apology, according to Cohen, is that ‘if the injured party receives the apology early enough, she may decide not to sue’.29

Legislation that protects apologies by making them privileged and not susceptible to being used subsequently in court enables defendants and potential defendants to do what they otherwise could only do safely in mediation – that is, attempt to resolve the dispute by apologising. By protecting apologies, legislation facilitates early apologies, which in turn facilitates dispute resolution. Without a privilege being applied to apologies, they seldom will be made outside mediation.

The British Columbia Apology Act sets the stage for persons and companies being sued in British Columbia to take advantage of the benefits of an apology without the risk that it will be regarded as an admission of liability.


1. SBC 2006, c 19.

2. Catherine A G Sparkman, ‘Legislating Apology in the Context of Medical Mistakes’ (2005) 82:2 AORN Journal August, 263.

3. ‘The Sorry Works! Coalition believes and advocates that apologies and upfront compensation for medical errors reduce lawsuits and liability costs while providing swift justice for more victims and reducing medical errors’ (accessed 18 May 2006).

4. As a result of the success of the Sorry Works! programme, the US government introduced, on 29 June 2005, federal bi-partisan legislation (Bill S 1337 – A bill to restore fairness and reliability to the medical justice system and promote patient safety by fostering alternatives to current medical tort litigation, and for other purposes) that will provide grants for similar pilot programmes at the state level. The bill was referred to the Committee on Health, Education, Labor, and Pensions, where it remains, as of this writing date.

5. Arizona S1036, available at bills/sb1036h.pdf (accessed 18 May 2006).

6. Colorado CRS 12-25-135, available at lpext.dll?f=templates&fn=fs-main.htm&2.0 (accessed 18 May 2006).

7. Oregon ORS Sec 677.082, available at 677.html (accessed 18 May 2006).

8. New South Wales Civil Liability Act (2002).

9. Daniel W Shuman, ‘The Role of Apology in Tort Law’ (2000) 83 Judicature 180.

10. Hiroshi Wagatsuma & Arthur Rosett, ‘The Implications of Apology: Law and Culture in Japan and the United States’ (1986) 20 Law & Society Review 461.

11. Ottawa: Law Commission of Canada, 2000.

12. Ombudsman of British Columbia, The Power of an Apology: Removing the Legal Barriers, Special Report No 27 to the Legislative Assembly of British Columbia (Victoria: BC Office of the Ombudsman, February 2006) at 10.

13. Ibid. at 13.

14. Charles Vincent, Magi Young and Angela Phillips, ‘Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action’ (1994) 343 Lancet 1609.

15. Jonathan R Cohen, ‘Advising Clients to Apologize’ (1999) 72 Southern California. Law Review 1009, citing Gerald B Hickson et al, ‘Factors That Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries’ (1992) 267 Journal of the American Medical Association at 1361.

16. Richard Blackwell, ‘Safe to say "sorry" with new B.C. bill’ The Globe and Mail (29 March 2006).

17. Jonathan R Cohen, ‘Apology and Organizations: Exploring an Example from Medical Practice’ (2000) 27 Fordham Urban Law Journal 1447 at 1449.

18. Ibid. at 1451.

19. Deborah L Levi, ‘The Role of Apology in Mediation’ (1997) 72 NYU Law Review 1165 at 1176.

20. Supra n 9 at 487 (emphasis in original).

21. Ibid.

22. Susan Alter, Apologising for Serious Wrongdoing: Social, Psychological and Legal Considerations, Ottawa: Law Commission of Canada, 1999.

23. Supra n 8 at 183.

24. As reported by Catherine Morris in ‘Legal Consequences of Apologies in Canada’ (draft working paper presented at a workshop entitled ‘Apologies, Non-Apologies, and Conflict Resolution’, University of Victoria, 3 October 2003). The Wigmore Rules for finding a legal privilege were affirmed by the Supreme Court of Canada in Alavutych v Baker (1975) and R v Gruenke (1991), and were used to exclude evidence in Marchand v Public General Hospital of Chatham, a civil mediation case.

25. ‘What It Means to Be Sorry: The Power of Apology in Mediation’, Mediation Matters (17 July 2004), online: DivorceNet

26. Jonathan R Cohen, ‘Legislating Apology: The Pros and Cons’ (2002) 70 University of Cincinnati Law Review 819 at 849.

27. See supra n 18 at 1171.

28. Ibid.

29. See supra n 14 at 1022.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions