Ontario apology legislation now in effect

Ontario’s apology legislation, the Apology Act, 2009 (previously reported here) is now in effect. The act applies to civil actions before the Ontario courts, including breach of contract, trade-mark and product liability cases.

As in the original draft of the legislation, an apology:

  1. an apology does not constitute an express or implied admission of fault or liability by the person making the apology;
  2. an apology does not, despite any contrary wording in an insurance or indemnity policy and despite any other legislation or law, void, impair or otherwise affect any insurance or indemnity coverage for any person in connection with the matter to which the apology relates;
  3. an apology cannot be taken into account in determining fault or liability; and
  4. the Act does not apply to the admissibility of apology evidence in criminal matters and provincial offences.

However, under the version of the Act now in force, evidence of an apology in any matter is not admissible as evidence of liability or fault unless a person apologies while testifying at a civil proceeding (including an out of court examination related to the civil proceeding), an administrative proceeding or an arbitration.  So, if an apology is to be made by a witness, it should not be made while testifying.

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