The Shotgun Blog
Tuesday, March 28, 2006
I’m sorry, now please don’t sue me
Hopefully this British Columbia legislation spreads around to some of the other provinces:
Corporations, governments and individuals will soon be able to offer a sincere apology as part of their dispute resolution process without fear of legal liability, thanks to new legislation being tabled today, said Attorney General Wally Oppal.
“There are times when an apology is very important and appropriate but the legal implications have long been uncertain,” said Oppal. “The Apology Act is designed to promote the early and mutually beneficial resolution of disputes by allowing parties to express honest regret or remorse by removing concerns that an apology amounts to an admission of liability or could void provisions of an insurance policy.”
Case example is the Chinese head tax. We can throw taxpayers money at it but just don’t say your sorry.
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I bet there isn't a lawyer in BC who would counsel their client to apologize. The SC could and should overturn such silly legislation.
Posted by: Gord Tulk | 2006-03-28 3:02:05 PM
I don't see any value in someone apologizing for the act(s) of another party.
It must be some sort of El Cubo feelgood ritual.
Posted by: Speller | 2006-03-28 3:08:05 PM
This reeks of political correctness. How can you possible apologize someone who is chomping at the bit to get at your wallet. Why bother?
It couldn't possible be sincere. An apology is an effort to get forgiveness for something. Most people in this litigeous country are hard pressed to forgive anything even after they've been paid off.
Consider that we now have a government legislating the how and when we are to feel sorry about something and come up with a heart-felt apology.
CONSIDER that most of the apologizing in Canada is on behalf of people who have been dead for a very long time. What's the point?
Let the poor descendents of the offended try to get over it.
I am sure someone offended my ancestors at some point in history. I got over it!
Posted by: Duke McGoo | 2006-03-28 3:44:27 PM
I think some of you are trying too hard to find trouble wherever you look. The over-litigation in our society is in part due to some lawyers obstructing justice to the point where normal human behaviour, like saying "I'm Sorry", becomes dangerous.
And that obstructs common grace.
Unless I'm missing something, or just got up on the wrong side of the bed this morning, this seems like an anti-law law to me. I think I'm in favour of it, at least so far.
Posted by: Vitruvius | 2006-03-28 4:55:39 PM
What is there to be sorry about, vis-a-vis the Chinese head tax? There was nothing illegal about. The Chinese who immigrated to Canada were not forced to come. Those who did, even at 500 bucks a head, benefited enormously from higher Cdn wages. Canada, as a nation had and has the right of self-detemination and the right to determine the nation's demographic.
Massive Chinese immigration did not benefit Cdns in the 19th/20th century any more than it does today. It drove done wages, provided economic competition, and portended the presence of a large, alienated group with potentially dual allegiance (spies). Chinese immigration also posed a huge medical risk, the importation of leprosy.
When does the guilt trip end? When does this Cdn culture of victimization end? Whether it's the interned Ukrainian, Italian or Japanese grandfather, or the restricted Jewish or Chinese immigrant or black discrimination it's always the evil Anglo-Saxon that's the target of their venom. Yet it is always to the Anglosphere that these so-called victims flock.
Posted by: DJ | 2006-03-28 6:01:14 PM
In the case of the head-tax, the Libs pumped out a couple hundred million in retribution and promised to make a stamp in recognition of the head-tax. Most denounced the act because the money ended up going to a brand new handy dandy Liberal friendly group and in the end all they wanted to hear was an apology.
The Libs wouldn't do it because they stated it was an admission of guilt and would lead to further liability issues.
I think it would be nice and simple to be able to say sorry, throw some confetti and go on with life instead of spending millions in tax dollars and drawing out the whole ordeal - just my 02.
Posted by: Darcey | 2006-03-28 7:20:09 PM
Actually, no compensation has yet been paid; the offer under the Liberals was for $12.5 million for public programs and an "acknowledgement" but no payment was made before the election.
And don't kid yourself that all was demanded was an apology. Depending on who you were talking to the demand for compensation ranged from nothing to several hundred million dollars. And Harper promised during the election to provide both an apology and "redress".
Posted by: truewest | 2006-03-28 7:46:51 PM
I agree with Vitruvius. From the way this was explained in to-day's news, it actually puts a stop to lawyers of the other party trying to claim that the person has expressed guilt and thus can be sued. So unless the news report is in error, I say it is an improvement. As for the head-tax, it would mean that the government could say it is sorry to have implemented this (if a government to-day could truly speak for the government of then) without being obligated to compensate Canadians of Chinese decent - most of whom immigrated after the head-tax was abolished.
Posted by: Alain | 2006-03-28 7:56:16 PM
An apology would be the answer if the matter ended there. Remember when you were a kid or even now,you would say "I'm sorry" and of course your older sibling would demand more. Such as a promise never to do it again,or some such drivel. Nowadays,an apology would have to be accompanied with a very large cheque. This is the only way to truly rid oneself of that terrible white guilt.There is a lawsuit going through the courts in the states asking for BILLIONS to right the wrongs of slavery.Can anyone say residential school?
Posted by: wallyj | 2006-03-28 8:01:26 PM
Nobody ever suggested that recent Chinese immigrants were entitled to compensation. there were, however, suggestions that the descendants of those who paid were entitled to the return of the $500 plus accumulated interest, which, as you might expect, could amount to serious dough.
As for the bill, since it only applies to disputes that fall under the jurisdiction of B.C. courts, it would have limited impact on the situation.
Posted by: truewest | 2006-03-28 8:05:06 PM
So glad to know that, if ever I should back over you in my car, a cheery "Sorry, dude" is all it will take the settle the matter.
Posted by: truewest | 2006-03-28 8:14:36 PM
I don't see, Truewest, that the act says that an apology settles the matter, if I understand correctly, it says that an apology doesn't prejudgice a fair settlement a priori.
To the degree that I'm correct, it seems to me that's a good idea, because it seems to me that if people are afraid to apologize due to a corrupted justice system, people will tend to escalate their disputes when otherwise they might have been less so inclinded.
People who are looking for a fight may fall outside of the domain I am anticipating, as evidenced by some of the rhetorical styles you see in blog comments, but I don't think most people are like that.
Posted by: Vitruvius | 2006-03-28 8:28:50 PM
No the act doesn't say that an apology settles things. WallyJ, however, did seem to imply that it should, at least when others were involved. I merely assumed that he was willing to apply the same principle to his own injuries.
There is something to be said for a timely apology. Despite this idea that we live in a terribly litigious society, a surprising number of people are quite happy to accept an apology, as long as they aren't substantially out of pocket themselves and they believe that the apology will be accompanied by some positive action that remedies the situation that led to the apology. This is apparently even true in the U.S. I recall speaking to a lawyer who worked as a liability manager at a ski resort in Colorado. His business wasn't ski-hill injuries -- Colorado doesn't allow lawsuits for injuries incurred on the slopes -- but things like slips and falls and falling ice in the village. He said that, even in the land of million dollar punitive damage award, most situations that did not involve serious injury could be resolved by an apology, nominal compensation and an assurance that the problem that caused the injury would be dealt with promptly so nobody else would suffer the same fate.
Incidentally, the reason people are afraid to apologize is not a "corrupted justice system". It's because an apology is, quite reaonably, taken to be an admission of liability. After all, why would anyone apologize for something that wasn't there fault?
That said, liability is admitted on a fairly regular basis in our courts, particularly in situations, such as motor vehicle accidents, where there are clear rules to assign blame. On the other hand, good luck getting a doctor to admit he or she did anything wrong; as I understand it, the most common reaction of doctors sued for malpractice is a demand that their lawyer file a counter-suit for defamation.
Posted by: truewest | 2006-03-28 8:49:31 PM
Fair enough, Truewest. It is my suggestion though that it is a significant part of the problem that "apology is, quite reaonably, taken to be an admission of liability."
Say someone falls down the stairs. Say you weren't in a position to help. Say you say, gosh, I'm sorry I wasn't in a position to help (just trying to be nice). Are you now liable?
Ok, say your neighbour suffers some misfortune, and say you express your condolences in the form of wishing you could have helped. And then say your neighbour, in the pocket of some greedy lawyer (not that there aren't non-greedy lawyers), sees that as an opportunity for leverage.
Now, is he sueing you for justice and restitution, or for unethical profit?
Posted by: Vitruvius | 2006-03-28 9:18:59 PM
I take your point, but those forms of apology wouldn't attract liability in any case. (If they were your stairs and you had just poured grease on them...well, that's another matter). It's one thing to wish you could have helped. It's another to have a duty to help.
The apologies the bill is designed to protect are those that arise in situations where liability is an issue. Even in those cases, it might well be argued that the bill is mere window dressing; it has always been possible to offer an apology as part of settlement negotiations without fear that the gesture will be raised against you in court should the negotiations fail.
Posted by: truewest | 2006-03-28 9:28:06 PM
While we libertarians aren't so big on the whole duty to help thingy (we prefer to allocate our help resources volitionally), my concern is that I'm not so sure it is not the case that "it has always been possible to offer an apology as part of settlement negotiations without fear that the gesture will be raised against you in court should the negotiations fail," as you put it Truewest, and moreover I'm concerned that the matter of the honest expression of sympathy is being corrupted.
I honestly don't know. I'm just thinkin' out loud. That, and I haven't yet seen what I would consider to be a good counter-argument to the act postulated in this thread.
Posted by: Vitruvius | 2006-03-28 9:59:13 PM
I've spent a lot of time in Japan, where people say 'excuse me' and 'my fault' all the time, regardless of whose fault it is. It's a charming habit that drives the insurance companies nuts when there are car accidents.
Anything that restrains lawyers from twisting common courtesy into an admission of guilt is fine by me.
Posted by: Halfwise | 2006-03-28 10:02:35 PM
If we let parasites run things, soon enough you will be a fault for saying "Please" and "Thank You". Their hoodwinked clients will probably claim some sort of S&M victimhood. It's sad, really, the magnitude of lack of common grace. But what can one do, I suppose, but try to set a good example?
Posted by: Vitruvius | 2006-03-28 10:10:59 PM
Don't worry, there's no duty to help. You can walk past a dying child (unless it's your own) with no legal consequences. (Unless you're in the Seinfeld series finale, but i digress) And settlement discussions are privileged, so with a few exceptions for bad faith, their content is inadmissible at trial.
here's a question: what is "I'm sorry" worth if you don't actually take responsibility for the harm you caused? And here's another: if someone admits liability spontaneously, why shouldn't that admission be considered in any subsequent proceeding. The proposed Act (which is so short I've included it below) purports to make it inadmissible; it'll be interesting to see what the court have to say.
BILL M 202 -- 2006
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 In this Act:
"apology" means an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate;
"court" includes a tribunal and an arbitrator.
"proceeding" means a legal proceeding other than a criminal proceeding.
Effect of apology on liability
2 (1) An apology made by or on behalf of a person in connection with any matter:
(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter,
(b) does not constitute a confirmation of a cause of action in relation to that matter for the purposes of section 5 of the Limitation Act, and
(c) must not be taken into account in any determination of fault or liability in connection with that matter.
(2) Evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any proceeding and must not be referred to or disclosed to a court in any proceeding as evidence of the fault or liability of the person in connection with that matter.
3 This Act comes into force on the date of Royal Assent.
This Bill provides that an apology may be made in relation to any civil matter without that apology being referred to in court or being held to constitute an admission of liability or a confirmation of a cause of action on behalf of the person making the apology.
Posted by: truewest | 2006-03-28 10:23:19 PM
Thanks for posting the act, Truewest, I should have gone and looked it up myself.
Good news though that the act isn't over-reaching, it sounds about right to me. To the degree that it turns out that jurisprudence ends up turning this into an excuse for liability, then I will have been wrong. It's happened before.
Interesting that it excludes criminal proceedings, I suppose since those are a federal matter that would be ultra vires.
Look at it this way. Say I say someone's stupid. Say they take offence. Say I say I'm sorry they're stupid. Am I then responsible for their stupidity? Not that I'd ever say anything so rude, of course ;-)
Posted by: Vitruvius | 2006-03-28 10:44:52 PM
I suppose applying it to criminal law would present constitutional issues. Perhaps more to the point, though, is that in criminal law, when you say you're sorry, they call it a confession.
Posted by: truewest | 2006-03-28 11:53:44 PM
All right, I'm sorry, I confess, you're stupid.
No, wait, no, no, I'm just kidding, I don't think you're stupid. I just couldn't pass up a straight-line like that ;-)
Posted by: Vitruvius | 2006-03-29 12:12:46 AM
Don't forget to remind them to tip their waitress.
Posted by: truewest | 2006-03-29 10:55:47 AM
...i'm sorry i said that.
Posted by: tomax | 2006-03-29 7:42:40 PM
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