Uncertainty around the treatment of apologies at civil law was recently spotlighted in a high-profile defamation case between two Québec public figures.
On July 8, the Superior Court handed down its decision in Morissette v. Poirier. The defendant, Luc Poirier, argued that some of his statements constituted apologies and were therefore inadmissible in evidence. In particular, he wrote to the plaintiff: “Sorry about the outburst, but you kind of had it coming” [our translation]. While the Court noted that it would be up to the trial judge to rule on the admissibility of these apologies, it observed that it was “far from obvious” that these statements truly constituted apologies.
The scope of an apology is particularly important, since it can have both symbolic and legal effects. This article offers an overview of the applicable regime and examines the practical effects of apologies in the workplace context.
Five years since the adoption of article 2853.1 of the Civil Code of Québec
The adoption of article 2853.1 of the Civil Code of Québec (“article 2853.1”) in 2020 aligns with Canadian reforms aimed at regulating the judicial treatment of apologies. The article provides that an apology cannot constitute an admission of fault. It applies to all civil matters, including labour law, but not to criminal matters.
In Air Canada c. P.A., a passenger alleged that he had been mistreated by the airline and was reimbursed for his ticket. The Québec Court of Appeal ruled that this was an expression of remorse that could not be equated with an admission of liability.
Under article 2853.1, “[a]ny express or implied expression of sympathy or regret constitutes an apology.” This definition therefore protects partial apologies. As discussed in Morissette c. Poirier, an “apology” that is accompanied by a reiteration of the offensive remarks or a justification of the disputed conduct may fall outside the scope of this definition.
The line between apologies and admissions
Article 2853.1 does not protect an admission made in the context of an apology. In such cases, the apology can be unbundled so that the explicit acknowledgement of a fact contained therein remains admissible in evidence.
In Amram c. Rogers Communications inc., Rogers sent a letter of apology to its customers following a major outage affecting its cellular telephone network. The Superior Court of Québec distinguished between the different passages of the letter. While the passage stating that Rogers apologizes for the inconvenience caused constituted an expression of regret within the meaning of article 2853.1, the factual findings preceding it were admissible. Indeed, the references to partial service interruptions that occurred in the plaintiff’s area seemed to confirm the occurrence of the event, rather than being part of the expression of sympathy.
The impact of apologies on civil and disciplinary measures
Notwithstanding the legal effects of article 2853.1, apologies remain admissible and relevant in matters of disciplinary measures. In particular, apologies can mitigate the liability of the party ordered to pay moral damages, while the absence of an apology can be unfavourable. Moreover, such omission has been considered an aggravating factor justifying an award of punitive damages, especially when it results from wilful malicious conduct.
This reasoning was applied in Lepage c. FTQ-Construction. At a press conference organized by FTQ Construction, the defendants made defamatory remarks about the plaintiff. At trial, the defendants reiterated these comments, asserting that they saw nothing wrong with their conduct and that they would act in the same manner if they had to do it all over again. The Superior Court found that the defendants had made no effort to mitigate the damage caused, preferring to maintain their position and justify their actions rather than express any regret.
The same reasoning applies to disciplinary measures. In labour law cases where the courts have intervened, the absence of remorse has been considered an aggravating factor that justifies, in some cases, upholding a dismissal, as in the case of Syndicat des travailleuses et travailleurs de Rolls-Royce Canada – CSN c. Rolls-Royce Canada inc. An apology, on the other hand, may weigh in favour of a lesser measure, particularly when it is made quickly, as in the case of Produits Microzinc Inc. c. Allard.
Conclusion
Given the limited commentary on article 2853.1 in Québec case law, this provision is often interpreted with reference to legislation in other Canadian provinces. It remains to be seen how this concept will evolve in civil law, and to what extent it will encourage apologies in a context where their legal consequences are neutralized.
However, one thing is clear: employers would be wise to use apologies judiciously to meet the challenges inherent in dispute management.