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Canadian Law of Work Forum (CLWF)
Law of Work Archive

The Apology Act and Employment Law

by David Doorey October 7, 2008
written by David Doorey October 7, 2008


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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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

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