Thinking Like a Human: British Columbia's Apology Act

Abstract

British Columbia’s Apology Act, the first of its kind in Canada, is a law reform initiative intended to promote and protect statements of sympathy or regret made in connection with any matter. It achieves this by: making apologies inadmissible as evidence of fault or liability; barring use of an apology to confirm a cause of action so as to extend a limitation period; and preventing the impairment of insurance coverage that would be available but for the apology.

The Apology Act is compared with Australian legislation upon which it was modeled and with ‘safe harbor’ legislation in various U.S. states that protects certain types of statements of sympathy or regret, typically those arising out of particular matters, such as accidents or medical malpractice. Unlike these models, the Apology Act protects such statements even if they expressly or impliedly admit fault, and does not limit protection to particular types of matters.

The author responds to moral and sociological critiques of apology legislation and, in doing so, characterizes the Apology Act as enabling, rather than limiting, the making of apologies, as well as encouraging earlier settlements and alternative dispute resolution. Drawing on sociological and psychological research, the author defines in detail the requisite contents of an apology, identifies effects that even minor variations in those contents can have on an apology’s reception, and considers the relationship of apology legislation to the broader societal context within which it operates.

Keywords: apology legislation, law and apology, dispute resolution