Can a Company’s Apology for a Safety Incident Be Used Against It?

B. An apology can generally be used against a company that makes it as an admission of guilt unless there’s a law specifically barring such use. EXPLANATION This scenario isn’t based on an actual case. But the situation is one that a company could find itself in after a safety incident, especially if workers are seriously injured or killed. It’s a natural, human tendency to want to apologize—and to get an apology—when something bad happens. Yet in the aftermath of a safety incident, lawyers often warn companies against making any apologies or expressions of sympathy for fear that these statements will be used against them in legal proceedings, such as prosecutions for safety violations. And this fear is warranted. In most Canadian jurisdictions, apologies can be used against the individuals or companies that make them as admissions of guilt or liability. However, letting individuals freely make apologies without fear of legal repercussions encourages them to take responsibility for their actions, lessens the likelihood of contentious litigation and encourages reconciliation. So six jurisdictions—BC, MB, NL, NS, ON and SK—have “Apology Acts” that bar the admission of an apology as evidence of fault or liability. (Saskatchewan’s ban is in its Evidence Act but the language mirrors the apology laws in the other five jurisdictions.) Thus, in this scenario, if the company is in a jurisdiction without an apology law, the court should let the prosecution admit the company’s press release into evidence as an admission. But if the jurisdiction has an apology law, the court shouldn’t let the press release into evidence. WHY WRONG ANSWERS ARE WRONG A is wrong because whether the company’s apology is truly an admission of guilt is debatable. After all, it appears to be more of an expression of sympathy than a confession of liability. Either way, the apology is admissible only if the jurisdiction doesn’t have a law barring the admission of apologies. C is wrong because apologies may be admissible as evidence. If the jurisdiction doesn’t have an apology law, the court should let the prosecution admit the company’s press release into evidence as an admission; if the jurisdiction has an apology law, the court shouldn’t admit the press release. D is wrong but raises one of the concerns about the use of apologies as evidence of a company’s guilt. Often what sounds like an apology is really an expression of sympathy with the victims of a tragedy or regret that the tragedy happened. Allowing such a statement to be used against a company as if it was a confession of the company’s liability for the tragedy may be unfair. That’s why apology laws define “apology” broadly to include expressions of sympathy or regret, statements 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. ONLINE RESOURCE: Here are some links to the apology laws in the six jurisdictions that have them.