Sorry (sincerely) Steve, I was unclear.  

I approve of orders of this kind, for very much the reasons you give. I

don't think damages are awarded to make good losses but rather to achieve

the nearest approximation to the wrong not having been committed. One way of

illustrating that is, as you say, damages for pain and suffering. I approve

of them too, and think their (partial?) abolition in Australia is based upon

a misconception of what damages are there to do.

Apologies are similarly substitutive in the sense that they are our doing

something in place of what we can no longer do (not commit the wrong in the

first place). We use the word apology in the sense of a (poor) substitute as

well (eg "Stevens' apology for a book on the law of torts".)

I wonder however whether it is right that something which is an expression

of regret which is wholly insincere really is an apology in the proper

sense. We see the same thing with children all the time.

"Apologise to your sister for hitting her."

"Soo-rrrrryyyyy"

"No, that isn't an apology, you must mean it."

I am minded to think that an insincere apology doesn't exist, like a

truthful lie. That doesn't mean that compelling expressions of regret isn't

a good thing.

Rob

-----Original Message-----

From: Hedley, Steve [mailto:S.Hedley@ucc.ie]

Sent: 29 October 2009 08:35

To: obligations@uwo.ca

Subject: RE: Liability of public authorities to apologize

Well, there are two points here - whether a compelled apology is really an

apology at all, and whether an order to apologise can be an appropriate

response to a wrong.

On the semantic point, I'm afraid ordinary usage is against Rob.  An

insincere apology is still an apology - no doubt it is a different thing

from a sincere apology, but it's still a species of apology.  As to which is

more satisfying, I think that will depend on the circumstances and the

parties involved. Some people would get considerable satisfaction from an

insincere apology, knowing that their wrongdoer will really hate having to

make it. And whether that's something we should encourage must depend on

wider considerations than have been canvassed here. Much the same issues

have been raised in relation to restorative justice (which, at the risk of

oversimplifying, is mostly about making the perpetrators of crimes act as if

they were sorry).

On the remedies point, I don't see the problem.  Remedies for torts almost

never give back precisely what was lost. Someone who loses a leg or the use

of a leg doesn't get back that thing, but rather a sum of money.  Sometimes

the correspondence between what was lost and what is awarded is small,

sometimes it is large, but there is almost always a significant difference

(and if Rob is against apologies, I can't see how he can be in favour of

damages for pain and suffering, where again the remedy bears only the most

distant relation to what was lost).

Steve Hedley

UCC

-----Original Message-----

From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]

Sent: 28 October 2009 20:28

To: Lionel Smith, Prof.

Cc: ODG

Subject: Re: Liability of public authorities to apologize

Can an apology be involuntary?

I don't think so. An apology is a voluntary recognition of wrongdoing.

They ought to apologise but can a court order compel a genuine apology?

Making someone going through the form of making an apology like this is

like putting the wrongdoer in the stocks. It is a way of expressing our

condemnation of the wrong which has been done, in a public and

humiliating

way, but it isn't really an apology. I approve of any order which seeks

to

place the plaintiff in as near a position as can be achieved to the

wrong

not having occurred, and this has no necessary connection with making

good

by compensation of any loss suffered as a result of the wrong.

We see the same thing in the UK all the time with newspapers issuing

"apologies" for libels. The Sun may go through the form of making an

apology, but it isn't really apologising.

Rob

> Earlier this year, a Canadian taxpayer brought a claim in the BC

Supreme

> Court against the Canada Revenue Agency for bad faith tax

investigation.

> He

> succeeded in negligence and also obtained a remedy under s. 24 of the

> Charter for the breach of his s. 8 right to be secure against

unreasonable

> search and seizure. Section 24 provides,

>

> 24. (1) Anyone whose rights or freedoms, as guaranteed by this

Charter,

> have

> been infringed or denied may apply to a court of competent

jurisdiction to

> obtain such remedy as the court considers appropriate and just in the

> circumstances.

>

> As you can see in the attached documents, the jury awarded $300,000

for

> negligence, with zero for punitive damages. However, for the s. 24

claim,

> they awarded $1,000,000 and ordered the Minister to apologize to the

> plaintiff. I am not sure whether this has happened before under s. 24

(or

> in

> any other context except perhaps a Seinfeld episode). But others might

> know

> better.

>

> The Crown has appealed....

>

> Lionel

>

>

--

Robert Stevens

Professor of Commercial Law

University College London