Lane v. Kock, 2015 ONSC 184
FILE NO. 116/08
DATE: 20150108
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Zachariah Lane and Alexis Koch, plaintiffs
- and -
Luke Kock and Mary-Ellen Frances Kock, defendants
BEFORE: Bale J.
COUNSEL: Robert Sugar and Russell Tilden, for the plaintiffs
Martin Forget and Tushar Tangri, for the defendants
HEARD: December 1, 2014
ENDORSEMENT
[1] The principal issue on this motion is whether the Apology Act, 2009, which provides that evidence of an apology is not admissible in a civil proceeding as evidence of fault or liability, applies retroactively to an apology made before the Act came into force.
[2] Zachariah Lane and Alexis Koch claim damages for burns suffered as a result of an explosion. During her examination-in-chief, Ms Koch gave evidence that about a month after she was discharged from hospital, Luke Kock apologized to them, and said that he felt badly about what had happened.
[3] Counsel for the defendants immediately objected to the evidence and asked that the jury be instructed to disregard it. After hearing argument on the issue, I reserved my decision. For the following reasons, I have concluded that the evidence is admissible.
[4] Apologies may or may not imply an admission of fault or liability in relation to the matter to which the words or actions relate. At the same time, apologies may be beneficial in ameliorating the hurt or loss suffered, and may assist in the resolution of disputes.
[5] In recognition of the beneficial effects of apologies, the Ontario Legislature passed the Apology Act, 2009 which came into force on April 23, 2009. Subsection 2(1) of the Act provides that an apology “does not, in law, constitute an express or implied admission of fault or liability”; and “shall not be taken into account in any determination of fault or liability”. Subsection 2(3) of the Act provides that an apology “is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of the fault or liability of any person.”
[6] The difficulty in the present case is that the apology about which Ms Koch gave evidence took place (if it did) in 2006, almost three years before the Act came into force.
[7] As a rule of statutory interpretation, there is a strong presumption that the legislature does not intend legislation to be applied retroactively: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014), at p. 761.
[8] The application of the Apology Act to the apology in issue in the present case would be a retroactive application because it would change the legal effect of a past event. Counsel for the defendants argues to the contrary; and, relying on subsection 2(3), says that the Act is directed at a future event, i.e., the trial at which evidence of the apology is not admissible. I disagree. Although the Act does affect the admissibility of apologies, the purpose of the legislation is to promote the making of apologies, and not to reform the law of evidence. The event to which the Act is directed is the making of the apology, not the trial of an action arising from the act or omission in relation to which the apology was given. In this case, the making of the apology was a discrete event which began and ended on one day in 2006, and it would be wrong for the law to reach back and change its legal effect. Doing so would not promote the social purpose of the legislation.
[9] A further argument against applying the Act to an apology made before it came into force arises from the provisions of clause 2 (1) (b) which provides that an apology made in connection with any matter “does not, despite any wording to the contrary in any contract of insurance or indemnity and despite any other Act or law, void, impair or otherwise affect any insurance or indemnity coverage for any person in connection with that matter.” This provision takes way a defence that insurers might otherwise have to a claim for indemnity by a person who has admitted fault or liability, by way of an apology, as that term is defined in the Act.
[10] In Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256, the court held that the rule against retroactive application should be applied where a party is deprived of a defence to an action by the operation of a new statute. The subject matter of that case was the Family Law Reform Act, 1975. Prior to the coming into force of the Act, spouses could not sue each other in tort, and insurers were not liable for injuries suffered by the children of an insured. The Act removed those bars to recovery. The court held that immunities from suit and defences are substantive, rather than procedural, and that their removal would be an extinguishment of substantive rights. The same reasoning applies to the removal of a contractual defence under a policy of insurance, based upon an insured’s admission of liability, evidenced in whole or in part by an apology.
[11] For the reasons given, the Apology Act, 2009 does not apply to the apology in issue in this case, and the evidence of the apology is admissible. In making this decision, I am, of course, ruling only on the issue of admissibility, and I express no opinion on the issues of whether the apology was actually made, or what the legal effect of it may have been, if any.
Date: January 8, 2015