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Law Times • December 7, 2009 FOCUS Apology Act signals cultural shift BY DARYL-LYNN CARLSON For Law Times O ntario's recent enact- ment of its Apology Act, introduced as Bill 108 and passed last spring, aims to allow professional organiza- tions and individuals to simply apologize for incidents gone awry while waiving the confession as a bona fi de admission of guilt. Th e legislation essentially recognizes the need for people on the receiving end of an al- leged wrongdoing to receive an apology — and perhaps a nego- tiated amount of compensation — from the alleged perpetrator while avoiding litigation. Th e hope is that the legisla- tion 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 practitio- ners never to apologize. Th e fear is that the other side would per- ceive such a move as an admis- sion 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 num- ber of U.S. jurisdictions and Australia. Yet some industries that law- yers had expected to embrace the legislation haven't yet ad- opted 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 legisla- tion with a good purpose," says Murray Miskin, a lawyer and founder of a fi rm called ADR Works based outside of Toronto that focuses on alternative dis- pute resolution as a means to get settlements for clients. But professional organizations slow to take up spirit of new law He says the insurance indus- try is the ideal sector to benefi t from the legislation, but so far major insurance companies, along with their lawyers, haven't been implementing practices in conformity with it. "Th ey just haven't yet absorbed the consequences of the act and how it could benefi t 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 han- dled 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 offi ce 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 in- jured" in order to launch a lawsuit for damages, Miskin acknowledges. "But if the oth- er driver doesn't even say they are sorry, the fi rst thing people think of is [to] sue." He suggests insurance com- panies could benefi t by curbing their costs for litigation and even for claims if they informed con- sumers about the legislation. "An apology is not an admis- sion, and if people were encour- aged to apologize within the pro- visions set out in the act, it does not mean you're at fault, and un- der this act, the apology cannot be used against you in a lawsuit." At the time of its passage, the act received formal endorsements by a number of professional orga- nizations, including the Ontario Medical Association and the On- tario Bar Association. Gary Furlong, a mediator with the fi rm Agree Dispute Resolu- tion, addressed the advantages of the Apology Act for professional associations at a recent ADR In- stitute of Ontario, Inc. profes- sional development session. In an interview with Law Been in Law Times? Want a record of it? Promote your law firm by ordering reprints of articles from the voice of the profession — Law Times! Reprints are great for: • Firm promotional material • Use on your web site • Training and education • Suitable for framing $175 - $225/reprint We provide a color PDF and unlimited reproduction rights. LAW TIMES For more information or to order reprints, please e-mail Gail Cohen at: gcohen@clbmedia.ca Untitled-3 1 Untitled-1 1 8/20/09 1:11:45 PM www.lawtimesnews.com 9/1/09 9:17:05 AM Stacey L. Stevens | David F.MacDonald | Michael L. Bennett Times, he notes that studies in the United States in jurisdic- tions that have such legislation have shown that incidents of litigation have signifi cantly declined. "In [medical] malpractice, for example, it has a tendency to prevent litigation," he says. "Th ey just saw this [having the potential] to minimize litiga- tion and cut to the chase and deal clients not to admit anything, don't apologize, and [in which] the impact of forcing the other party to pursue litigation" was the best option. "Th is is certainly not intend- ed to avoid going to court in any way, shape or form. But research shows that if a person is killed in a motor vehicle accident, what [families] really want is to prevent that from happening to Furlong acknowledges that most professional organizations routinely advise their members never to apologize for a mistake. But as an alternative dispute resolution professional, he has attended several speaking en- gagements with professional or- ganizations since the legislation took eff ect and has promoted the benefi ts of the Apology Act. He suggests professionals 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. with the real problem," he adds, noting that parties in some cases will opt to use alternative dispute resolution avenues to settle their claims for compensation. For his part, Furlong is pleased with Ontario's legislation. "Broadly, I think it's extreme- ly positive," he says. "In certain areas, like malpractice or mo- tor vehicles, people will feel less constrained to just apologize." He says prior to the act, On- tario had been fostering a cul- ture "where lawyers advise their anyone else and to understand what happened so they can get some closure on it. Money is a secondary motivation in many of those cases," he says. "But if they're stonewalled, they feel they have to get a law- yer, and what this legislation does is free people up in many professions to say, 'Look, here's what happened. I'm really sorry, and here are the reasons why.' So it can have the eff ect of limit- ing that person's need to pursue litigation in a dogged way." Trust [ stand to save costs and time by issuing an apology for a perceived wrongdoing. Still, he expects the recognition and implementation of the act by professional organizations to be slow. "I don't think it will happen overnight," Furlong says. "May- be over the next year or two we will see some change on the front end by professional groups as the word gets around that this is now in place so we should be doing things diff erently." LT PAGE 11 Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. 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