Court of Appeal Discusses BC Apology Act

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In the first case that I’m aware from the BC Court of Appeal discussing BC’s Apology Act, reasons for judgement were released today addressing this statute in the face of post collision conduct.
In today’s case (Vance v. Cartwright) the Plaintiff was found fully at fault following motorcycle/vehicle collision.  The Plaintiff appealed arguing the trial judge erred in allowing an apology into evidence.  The BC Court of Appeal upheld the trial judgement finding the trial judge did not place any weight on the Plaintiff’s post crash apology in the reasons underlying the claims dismissal.  In commenting on BC’s Apology Act the Court of Appeal provided the following reasons:

[5]           Section 1 of the 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.

[6]           Section 2 provides:

2(1)      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.

[7]           It is contended that Mr. Vance’s statement that he was sorry and that the accident was all his fault, as well as his later payment of $1,000, constituted an apology or apologies as defined by the Act which the judge took into account in determining fault.

[8]           Accepting for present purposes that what Mr. Vance said and did amounts to an apology as defined, I do not consider the judge can be said to have taken it into account in the sense of treating it as an admission or acknowledgement of fault. His clear purpose for referring to what was said was only to explain why no photograph of the position of Ms. Cartwright’s vehicle had been taken to establish where it had been stopped when Mr. Vance crashed into its left rear fender.

[9]           Nowhere in his reasons does the judge even suggest he was relying on what Mr. Vance said or did after the accident as the basis of finding him at fault. His reasoning is all based on the evidence and his findings of what occurred before the collision – speed, distance, line of sight, and the conduct of Mr. Vance and Ms. Cartwright.

[10]        Significance is attached to the judge having said Mr. Vance was fearful and not thinking clearly following the accident and that his behavior 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.

[11]        I conclude the judge has not been shown to have found Mr. Vance to be solely at fault for the accident in any way that would offend the provisions of the Act.

Apology Act, bc injury law, Vance v. Cartwright

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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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