Cormack v Chalmers, 2015 ONSC 5599
Released September 8, 2015 | Full Decision
Following jury selection and prior to the commencement of trial, counsel sought a ruling concerning the legal effect of the Apology Act.
The plaintiff was badly injured when she was struck by a motor boat while she was swimming in close proximity to a harbour entrance. At the time the plaintiff went swimming, she was a guest of the defendants at their cottage. The cottage was in close proximity to the harbour entrance. The plaintiff had not been to the cottage before. The claim against the defendant cottage owners alleged that they had failed to warn her of the hazardous harbour entrance near the end of their dock, despite having warned visitors before.
The plaintiff proposed to call a witness who would say that she was told by the defendant cottage owners that they knew that swimming at the end of their dock was dangerous. The defendants argued that the evidence in question was coupled with what amounted to an apology and therefore the entire paragraph was inadmissible under the provisions of the Apology Act. The evidence from the will-say statement of the proposed witness was 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.
Justice Ray held that an apology was defined as “an expression of sympathy or regret, a statement that a person is sorry for any 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.” He cited the case of Simei v Hannaford, 2015 ONSC 5041, for the proposition that the Apology Act was intended to allow litigants to express sympathy without having to worry about it being used against them at a later date.
Justice Ray held that any evidence of an apology – as defined – was clearly inadmissible. However, he held that the evidence sought to be admitted contained both statements of relevant fact and statements of regret. Therefore, he held that the statements of fact could, in effect, be de-coupled from the apology. He redacted the evidence and held that the following sentences remained admissible:
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.
Counsel for the plaintiff: Roger Oatley and Troy Lehman
Counsel for the defendants: Walter Aronovitch and Luke Field