Apologizing in Ontario: Effects of the Apology Act

In 2009, Ontario came out with the Apology Act¹. The Act says that apologies given can not later be used against the offender to show guilt or responsibility for a legal matter. However, it does not apply to provincial offences, nor in criminal settings, where apologies can be used against the offender.

Today I wanted to consider the following questions: What is an apology? When can an apology be used? And does the Act undermine apologies, or is it a good thing?

What is an apology?

The first thing to consider is what the content of the apology is. Of course, this is going to depend on what the apology is for, but we can still look at some universal factors that will add or detract from an apology. Smith provides an outline for all the potential elements of an apology, which he calls the “gold standard” apology. They include:

1. A corroborated factual record – offender goes over the wrongdoing
2. Acceptance of blame
3. Possession of appropriate standing
4. Identification of each harm
5. Identification of the moral principles underlying each harm
6. Shared commitment to the moral principles underlying each harm
7. Recognition of the victim as moral interlocutor – treats them with dignity and standing
8. Categorical regret – belief that they have made a mistake
9. Performance of the apology
10. Reform and redress
11. Intentions for apologizing – to advance the victim's well being
12. Showing appropriate emotion²

While an apology that includes all of those things would be very impactful, many apologies don't include them all. Smith provides a few examples of those as well:

• The ambiguous apology - “I'm sorry”, which leaves you asking, okay, for what exactly?
• Expression of sympathy - “I'm sorry for your loss”, which takes no responsibility
• The value-declaring apology - “That was wrong”, which renounces a behaviour
• The conciliatory apology - “Let's agree to disagree, I'm sorry things got heated”
• The compensatory apology – payment without any acceptance of blame
• The purely instrumental apology – apologizing without meaning it for reasons of appearance³

When can apologies be used?

Apologies are used every day for many reasons, but I think it is true to say that many people do not want to apologize without carefully thinking it through because it may attract unwanted consequences. One of those consequences could be that once you apologize, you may be considered liable for the offence. This is what the Apology Act has tried to address.

What we have seen since are several apologies in the news. My class paper and presentation focused on Steven Harper's apology to victims of residential schools. My colleague's focused on corporate apologies, with Research in Motion's (RIM) recent apology to Blackberry users being an example. In our presentation, we also considered day-to-day apologies and how they make us feel about conflicts.

It seemed from this presentation that many people do appreciate an apology. It may be from a friend who hasn't returned your calls, a server who has erred on your order, or a company that overcharged you. If an apology is withheld, we are angry with the friend, we want our money back, and we may move our business elsewhere or spread bad reviews. If an apology is given, often all is forgotten, and in the case of businesses, we may spread good things. This is especially the case where many of Smith's factors are included in the apology.

Does the Apology Act undermine apologies?

The Act would have the potential to undermine the true purpose of an apology by allowing it to be used as a safe strategy to try to reduce or eliminate the consequences of a wrongdoing. The risk is that it would promote purely instrumental apologies, one of Smith's apology types listed above. The purely instrumental apology is a tactic used by the offender to achieve some end. For example, a doctor who is guilty of malpractice might apologize to the victim in an attempt to make the issue go away, or reduce the damages being claimed, without in fact being sorry at all. With the Apology Act in place, if the goal of the apology fails, the doctor can still adjudicate and defend themselves without having to acknowledge the apology. I would imagine a victim in such circumstances may be very upset to find that an apology that admitted fault could not be used in the adjudication process.

The flip side however is that with the Apology Act in place, people may be less afraid to apologize for their wrongdoings. Given our adversarial culture, it is a scary thing to admit fault in case it can be used against us later on. This leads to many ambiguous apologies or expressions of sympathy, which can be less effective but much safer to provide than a comprehensive apology which accepts any blame. Over time, as people learn they are protected, they may be more inclined to provide a full apology, which in turn may lead to less grudges, anger, and lawsuits.

I like the Apology Act. I think our society needs more apologies, more reflection on the Smith factors and how we feel, and less adversarial behaviour. The Apology Act encourages this by creating a safe space for apologies to occur. The limitations, in my opinion, are that it doesn't extend to provincial or criminal offences. That means that people will not be apologizing for things like car accidents or trauma to person or property, possibly areas where an apology may be needed most by a victim.

1SO 2009, C 3.

2Nick Smith, I Was Wrong: The Meaning of Apologies (Cambridge: Cambridge University Press, 2008) at 141-142.

3Ibid at 145-151.