COURT FILE NO.: CV-12-0240-00

DATE: 2015-09-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RUMIANA CORMACK, Plaintiff

AND:

BENJAMIN CHALMERS, SHANNON PITT and ERIK RUBADEAU , Defendants

BEFORE: Honourable Justice Timothy Ray

COUNSEL:
Mr. Lehman, Counsel, for the Plaintiff.

Mr. Evangelista, Counsel, for the Defendant Chalmers.

Mr. Field, Counsel, for the defendants Pitt and Rubadeau.

HEARD: September 8, 2015

ENDORSEMENT

[1] Following jury selection and before the trial commenced, counsel sought a ruling concerning the legal effect of the Apology Act[^1] on certain evidence that the plaintiff proposed calling.

[2] The plaintiff was badly injured while she was swimming in proximity to a harbour entrance. She was struck by Chalmers motor boat and was badly injured by its propeller. At the time the plaintiff went swimming, she was a guest of Pitt at their residence close to the harbour, had allegedly not been there previously, and allegedly had not been warned about possible hazards of swimming off their dock. The action was framed in negligence against all defendants, the Negligence Act was pleaded; and joint and several liability was claimed against the defendants Chalmers and Pitt. A Mary Carter agreement was entered into between Chalmers, the boater, which limited his liability. The plaintiff proposes calling a witness who will say she was told by the homeowners, Pitt and Rubadeau, that they knew that swimming at the end of their dock was dangerous.

[3] The defendants Pitt and Rubadeau contend that the evidence in question was coupled with what amounted to an apology and therefore the entire paragraph is inadmissible under the provisions of the Apology Act.

[4] The evidence on this motion excerpted from the plaintiff’s will-say statement is as follows:

Asen spoke with Shannon Pitt and Eric Rubadeau. Shannon told Asen that she was sorry and she could not forgive herself. She said that she always tells people not to swim behind the dock and has told her father not to go swimming there. Shannon regretted not telling Rumiana.

[5] An apology is defined as: “apology” means an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate. [^2]

[6] In 2015 ONSC 5041, Master Short expressed the view that : “In my view, the statute is intended to allow a litigant, to express sympathy or care for the circumstances of an individual without having to worry whether or not a spontaneous utterance will be drawn (sic) back in their face at a later date.”

[7] In 2010 ABQB 743, in dealing with similar legislation in Alberta, Master Laycock, was faced with an admission and an apology in the same sentence. The issue was whether he should redact the apology words from the sentence so as to leave the admission. He held that the sentence in its entirety was to be redacted leaving other admissible admissions intact. He noted that - “It is the expression of sympathy or regret combined with the admission of fault that the legislature has determined is unfairly prejudicial.” [^3]

[8] Clearly any evidence of an apology as defined is inadmissible. The question raised is whether an otherwise admissible relevant admission coupled to an apology is admissible. This requires a contextual analysis of the words used. The statements in question each convey separate and distinct thoughts or messages. There are statements of fact and statements of regret.

[9] I am satisfied that the anticipated evidence contains separate sentences, with each sentence a separate thought. I am satisfied that the second and fourth sentences of the above excerpt should be redacted so as to conform with the requirements of the Apology Act. The remaining surviving evidence will therefore be: Asen spoke with Shannon Pitt and Eric Rubadeau. She said that she always tells people not to swim behind the dock and has told her father not to go swimming there.

Ray, J

Date: September 8, 2015

[^1]: Apology Act, 2009, S.O. 2009, CHAPTER 3.

[^2]: Apology Act, supra, section 1.

[^3]: Robinson v. Cragg, paragraph 20.