Last October I did a post about the Ontario government’s intention to introduce legislation that would permit apologies to be made that did not affect any potential subsequent litigation. Well, a few weeks ago (but just reported in the Ontario Gazette last week) the Apology Act, 2009 was proclaimed into force. A few comments on the new legislation which is only has four sections.
Generally speaking, the Act provides as it was expected. If you apologize, the apology will not be used as part of the other person’s case against your or as an admission of liability or fault on your part. There are, however, two exceptions. The first is that apologies can still be used against you for matters involving the Provincial Offences Act – that is, more minor crimes or regulatory violations. So, if you get pulled over by the police and say “I’m terribly sorry Officer, I apologize for speeding over the limit” and then you later deny that you were speeding, the apology can be used against you as an admission that you were, in fact, speeding.
The second, and I would suggest more important, exception is that the Apology Act, 2009 will not affect Section 13 of the Limitations Act, 2002. You’re probably thinking right now “That’s great – wait, what the heck does that mean?” Well, the general rule is that I have 2 years to sue you whenever you do something wrong to me, break an agreement with me, etc. An exception is made, however, for primarily debts. Let’s suppose that you borrow $100 from me an agree to pay on January 1, 2010. If you do not pay on January 1, 2010, then I would normally have until December 31, 2011 to sue you for the money and if I don’t sue until, say, January 2, 2012, I’m too late to sue you. HOWEVER, if I acknowledge the debt during that 2 year period, then the time starts to run fresh from the date I acknowledged the debt.
How does one acknowledge the debt? The easiest way it to make a part payment on the debt. Another way is to put in writing that you agree that you still owe me the $100, for example. But let’s suppose that I say on January 10, 2011 “You still owe me the money” to which you respond “I’m sorry I haven’t paid you.” That apology can still be used as an acknowledgement of the outstanding debt with the result that you could be found to have re-started the time running so that I now have two years from that day, or until January 9, 2013, to sue you.
So, if you are being sued for a debt, someone is trying to repossess or recover personal property (ie. usually anything besides a house or land) or someone is trying to enforce their security against personal property, keep your mouth shut and don’t make any apologies. Otherwise, you can apologize if someone is trying to sue you without the apology coming back to harm you. That said, as a matter of course, try to keep quiet until you’ve had a chance to consult your lawyer.