Sorry

The December 7, 2009 issue of the Law Times newspaper included a detailed article on the impact of Ontario’s Apology Act.  For the article they interviewed Murray Miskin whose comments are noted in the extract below:

Ontario’s recent enactment of its Apology Act, introduced as Bill 108 and passed last spring, aims to allow professional organizations and individuals to simply apologize for incidents gone awry while waiving the confession as a bona fide admission of guilt.

The legislation essentially recognizes the need for people on the receiving end of an alleged wrongdoing to receive an apology — and perhaps a negotiated amount of compensation — from the alleged perpetrator while avoiding litigation.

The hope is that the legislation will lessen the propensity for people to sue for damages resulting from minor incidents and enable more serious cases that end up in the courts to reach settlements expeditiously.

But for years, associations for many professionals along with their lawyers, such as those in the health-care and insurance sectors, have advised practitioners never to apologize. The fear is that the other side would perceive such a move as an admission of guilt leading to litigation or a disciplinary hearing within the governing body.

In passing the legislation last spring, Ontario becomes the fourth province in Canada to enact such laws, joining British Columbia, Saskatchewan, and Manitoba along with a number of U.S. jurisdictions and
Australia.

Yet some industries that lawyers had expected to embrace the legislation haven’t yet adopted policies to acknowledge its advantages that could serve to avoid the cost of litigation in many cases, say lawyers.

“It’s a good piece of legislation with a good purpose,” says Murray Miskin, a lawyer and founder of a firm called ADR Works based outside of Toronto that focuses on alternative dispute resolution as a means to get settlements for clients.

He says the insurance industry is the ideal sector to benefit from the legislation, but so far major insurance companies, along with their lawyers, haven’t been implementing practices in conformity with it.

“They just haven’t yet absorbed the consequences of the act and how it could benefit them,” says Miskin, many of whose clients are people seeking compensation as a result of car crashes. “So the practice of litigation in the area hasn’t changed.”

He says in one matter he handled recently, a client told him that if the driver of a vehicle that caused the crash he was involved in had apologized at the time of the incident, he wouldn’t have sought legal recourse.
But the client instead went to Miskin’s office seeking to launch a lawsuit for his relatively minor injuries because the driver didn’t apologize.

“In most cases, a person would have to be seriously injured” in order to launch a lawsuit for damages, Miskin acknowledges. “But if the other driver doesn’t even say they are sorry, the first thing people think of is [to] sue.”
He suggests insurance companies could benefit by curbing their costs for litigation and even for claims if they informed consumers about the legislation.

“An apology is not an admission, and if people were encouraged to apologize within the provisions set out in the act, it does not mean you’re at fault, and under this act, the apology cannot be used against you in a lawsuit.”

You may read the full article at this link: http://tinyurl.com/ybwlqqd