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The Apology Act and Employment Law

The Ontario government appears ready to enact a new Apology Act. This curious little bit of legislation is intended to encourage people to say sorry for misdeeds without fear that the apology will later be used as an admission of liability in a legal proceeding.   Most of the media coverage has focused on the situation of care-givers and doctors who refuse to say sorry to patients for mistakes. However, as I read the language (and someone correct me if I am missing something), the proposed statute covers a much broader scope than that, and would capture apologies made by employees to their employer (and vice versa).

The legislation provides that no apology can be used as evidence of an admission of guilt before any court, tribunal, or arbitrator.   What could this mean for employment law?  Well, there are lots of times when employees accused of something (say, theft or negligence) by their employer say sorry. Indeed, in unionized workplaces, arbitrators consider apologies not just as evidence of guilt, but as a relevant factor in deciding if the employee should be reinstated or assessed a lesser penalty. Sometimes, employees apologize when confronted, and then later change their story and say they did not intend to admit guilt.  This statute appears to say that an apology by an employee is not admissible before an arbitrator as evidence that the employee committed a wrong.  Presumably, the employer would need to prove the wrong was committed independently from the apology.

In a non-union environment, an employer who wants to dismiss an employee for cause (so it doesn’t need to pay reasonable notice) may also run into this statute.  It appears that an employee’s apology for the alleged wrongdoing would not be admissible in a wrongful dismissal complaint as evidence that the employee committed the wrongful act.  We’ll have to watch for cases raises these sorts of issues down the road.

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