>>>
"David Cheifetz" 8/15/2006 6:44 AM >>>
Russell,
From
the BC Legislature's Hansard
we have this morning's digression into political logic. For those
who care, it's the BC government's official explanation for the
Apology Act. The Minister's speech as record in Hansard ends at
the ellipses after "legal consequences".
-----------------------------
APOLOGY
ACT
Hon.
W. Oppal presented a message from Her Honour the Lieutenant-Governor:
a bill intituled (sic) Apology Act.
Hon.
W. Oppal: I move that the bill be introduced and read a first time
now. [1005]
Motion approved.
Hon. W. Oppal: I am most pleased to introduce the Apology Act. This
is new legislation. It is designed to reduce litigation and to promote
an early resolution of legal disputes. The bill will establish that
an apology does not constitute an express or an implied admission
of liability or fault. Also, an integral part of this bill is that
evidence of an apology is not admissible in legal proceedings.
The bill embodies principles recommended by various people. To that
extent, in particular I want to thank the hon. member for Vancouver-Burrard,
whose very thoughtful private member's bill raised a public profile
about the value of an apology in the settlement of disputes. As
well, I want to pay particular tribute to and recognize the work
that was done within my ministry — the very diligent people
in the ministry who were integral in the advancement of this legislation.
It is becoming accepted wisdom that an apology often will go a long
way towards resolving a matter. Many times, persons who have been
injured simply want an explanation and an apology as to what happened.
In the early 1990s I was asked by the government of the day to conduct
a commission of inquiry into policing. One of the terms of reference
referred to public complaints and public accountability of police.
We heard from many people who came before the commission of inquiry,
and they advised us that had the erring officer come to them and
offered an explanation for his or her actions, and an apology, they
would not have laid a complaint. As well, we know that litigation
in the United States has been eliminated, particularly in medical
malpractice cases, where apologies have been offered.
Our current laws discourage people from apologizing. This Apology
Act is designed to change this. It will eliminate the concerns that
an apology amounts to an admission of liability or that it may void
the provisions of an insurance policy. As a result, it will encourage
natural, open, direct dialogue between aggrieved parties and will
allow an apology to be made at an early stage of legal proceedings
as well. It will also promote individuals to take responsibility
for their actions in circumstances, because the concerns about legal
consequences. ...
--------------------------
I
suppose the idea is to allow the alleged wrongdoer to proactively
offer a sincere <g> apology without demanding that the person
claiming to be aggrieved first (1) put it in writing that she, he
or it won't use the apology as an admission of liability and (2)
include in the document an affidavit by a qualified in the jurisdiction
lawyer that the aggrieved person received independent legal advice
before signing the document and understood the purpose and effect
of the document.
I
realize that I've a very bad habit of being pedantic (which, in
some cases IS A VERY BAD THING (pace)) but I suppose it's worth
mentioning that there's no harm in the legislation except that
1.
it could reduce lawyers' work and so fees;
2.
its intent is expressly not to create liability or impair any defence
to liability; but
3.
it does. As Russell noted, it prevents the alleged wrongdoer from
introducing evidence of an apology in existing circumstances where
a valid apology, accepted or not, would lessen or prevent some aspect
of the damages claimed. Russell mentioned punitive damages. There's
defamation, too.
The
Apology Act provides in clause 2(2), under the heading "effect
of apology on liability"
2.(2)
Despite any other enactment, 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.
BC's
Libel & Slander Act contains a version of the rather common
apology in mitigation of damages provision in such statutes:
Proving
offer of written apology in mitigation of damages
10
In an action for defamation if the defendant has pleaded not guilty,
if judgment has been given against the defendant with damages
to be assessed, or the defendant admits the defamation, the defendant
may give in evidence in mitigation of damages, that the defendant
made or offered a written or printed apology to the plaintiff
for the defamation before the commencement of the action, or if
the action was commenced before there was an opportunity of making
or offering the apology, that the defendant did so as soon afterwards
as the defendant had opportunity.
I
detect an inconsistency.
You'll
note that the Minster took pains to "to pay particular tribute
to and recognize the work that was done within my ministry —
the very diligent people in the ministry who were integral in the
advancement of this legislation." If I were a member of that
Ministry, I'd take pains to say "don't blame me. I wasn't out
to lunch that day, nor indulging in a sample of what's reputed to
be BC's most valuable, privately grown, cash crop."
The
Hon. W. Oppal is British Columbia's AG and Minister Responsible
for Multiculturalism.
Assuming
that the Apology Act does detract from existing rights, I suppose
that entitles me to wonder which articling students or called lawyers
in the BC AG drafted the legislation and to suggest that they need
to attend a CLE conference or 5. I can't believe that nobody in
the Ministry pointed that out to his or her political "master".
I suspect someone did; but the response was that it would be fixed
in Committee or subsequent readings. In other words, the political
points to be earned outweighed the need to make sense so sit down
and shut-up.
