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Tag: Apology Act

Court of Appeal Discusses BC Apology Act

Written by admin on . Posted in Uncategorized. 47 Comments on Court of Appeal Discusses BC Apology Act

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.

BC Apology Act Keeps Roadside Admission Out of Evidence

Written by admin on . Posted in ICBC Liability (fault) Cases. 58 Comments on BC Apology Act Keeps Roadside Admission Out of Evidence

Section 2 of BC’s Apology Act holds that an apology “does not constitute an express or implied admission of fault or liability by the person in connection with that matter,” and that it “must not be taken into account in any determination of fault or liability in connection with that matter.”  Although this law has existed for several years it has received little judicial attention.  In one of the first cases that I’m aware of addressing this section, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, relying on this statute.
In this week’s case (Dupre v. Patterson) the parties were involved in a bike/vehicle collision.  Fault was disputed.  After the collision the cyclist apparently apologized to the motorist.  Madam Justice Adair found the motorist solely at fault for the crash and before reaching this conclusion had the following brief comments about the application of the apology act to the cyclist’s roadside statements:
[40]         Defence counsel pointed to some statements made by Ms. Dupre to Ms. Patterson after the accident, when Ms. Dupre apologized.  In view of my conclusion that Ms. Patterson’s negligence caused the accident, I will address this point only very briefly.
[41]         First, it was unclear, based on the submissions, how I was being asked to use Ms. Dupre’s statements and whether they were admissible for the purpose for which they were being tendered.  Secondly, it is clear that an apology made by or on behalf of a person in connection with any matter does not constitute an express or implied admission or acknowledgment of fault or liability:  see the Apology Act, S.B.C. 2006, c. 19, s. 2.
[42]          Ms. Dupre explained that when she spoke to Ms. Patterson after the accident, she was upset and in considerable pain from falling and injuring her shoulder, and she felt embarrassed by the attention the accident had caused.  She did not remember saying anything about having over-extended or pushed herself too far on the bike ride.  Roadside admissions at accident scenes are unreliable, since people tend to be shaken and disorganized.  This describes Ms. Dupre’s situation.  Her statements do not affect my conclusion that Ms. Patterson’s negligence caused the accident.

At-Scene Admission Tips the Scales at Liability Trial

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 56 Comments on At-Scene Admission Tips the Scales at Liability Trial

As previously discussed, admissions in the aftermath of a collision can be important evidence when a liability case proceeds to trial.  Reasons for judgement were released this week where such evidence was the crucial tipping point.
In this week’s case (Koshman v. Brodis) the parties were involved in an intersection collision. Both claimed to have a green light.  Both had independent witnesses confirming their versions of events.  Ultimately the Court held that while it was a close call the Plaintiff likely had the green light and held the Defendant fully at fault.  In reaching this conclusion the Mr. Justice Ehrcke provided great weight to an at-scene admission made by the Defendant.  The following reasons were provided:
[26]         A determination should not be made simply by counting the number of witnesses on each side, nor is the testimony of an off-duty police officer necessarily of more weight than that of a civilian witness.
[27]         Clearly, different people at the scene saw things differently, and have different memories of how this accident occurred. That is not particularly unusual in a trial such as this.
[28]         What is somewhat unusual in this case is that both the plaintiff and a neutral civilian witness, Mr. Fontaine, testified that after the collision the defendant acknowledged responsibility. The plaintiff testified that the defendant said to her at the scene that the accident was her fault. The defendant testified that if she said this, she did not mean to imply that she admitted liability. Mr. Fontaine testified that the defendant said to him, “Oh my God, I’m so sorry, I didn’t see the red light.” The defendant denies having said those words.
[29]         I do not accept the defendant’s explanation for what she said to the plaintiff at the accident scene, and I do not believe her denial of what she said to Mr. Fontaine. I am satisfied on a balance of probabilities that she did say these things, and she did so because she was aware that she had entered the intersection against a red light.
One matter of interest that did not appear to be canvassed was whether this admission should have been admitted give section 2 of BC’s Apology Act which holds that an apology “does not constitute an express or implied admission of fault or liability by the person in connection with that matter,” and that it “must not be taken into account in any determination of fault or liability in connection with that matter.”