Keywords: I’m sorry
Basic Facts: Motorcyclist collides with a vehicle at an intersection. At the scene he (the motorcyclist) apologizes, says he is sorry, the accident is “all his fault”, and later in the day he gives the father of the driver $1000 for the repair of her car. He (the motorcyclist) later sues her for his injuries.
Importance: The B.C. Apology Act defines “apology” as follows:
“apology” means an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate.” (para. 5)
And the Act goes on to say what the apology can and cannot be used for:
- “An apology made by or on behalf of a person in connection with any matter,
(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter,
(d) must not be taken into account in any determination of fault or liability in connection with that matter.
(2) Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability of the person in connection with that matter.” (para. 6)
On appeal, the principal ground was that the judge had erred in taking into account the apology and finding him to be solely at fault. The B.C.C.A. basically said that the judge referenced the apology, but not as a consideration determinative of fault, specifically saying (at para. 10)— this was an oral judgment (from the bench):
“Significance is attached to the judge having said Mr. Vance was fearful and not thinking clearly following the accident and that his behavior [sic] was nonetheless remarkable, not consistent with someone whose life had been put in jeopardy by the actions of another. But that appears to me to be little more than a comment on his confused state of mind following the accident. If anything, the judge appears to have been discounting the significance of what Mr. Vance said and did. In any event, it is not indicative of the judge having wrongfully relied on, or taken into account, anything that occurred after the accident to find Mr. Vance at fault: quite the contrary.” (para. 10)
Interestingly, there was another issue raised, that the trial judge restricted cross-examination by opining that a particular question “served no purpose” and instructing counsel to “move on”. The B.C.C.A. said that there is “no substance to the point”, and the “judge did not restrict the cross-examination” (para. 13).
Counsel for the Appellant: Brent Hambrook (Hambrook & Company, Surrey)
Counsel for the Respondent: James Morin, Lori Leung (Whitelaw Twining Law Corp., Vancouver)