July 16, 2014
By Brian Babcock
Injured or aggrieved people are often looking for more than money as compensation for being wronged, and this is especially true where the damage is to a person’s reputation or personal dignity.
This fall, I am teaching Remedies at Lakehead University Faculty of Law, and one of the topics I will ask my students to think about is whether an apology is a meaningful remedy, and in particular, an apology ordered by a court or tribunal.
The law has long recognized that apologies have value. For example, in the law of defamation, an apology can reduce the damages. Ontario, as with most provinces, has added an Apology Act to the law which in many circumstances, makes it easy to apologize for an error or other wrongful act, without the apology counting as an admission of fault if you are later sued.
Human Rights Tribunals, labour boards and arbitrators may require an apology as part of the remedies they order. Traditionally, apologies are not something that a court will order as a remedy, though it is sometimes used as a Charter remedy for discrimination.
Some people view ordered apologies as insincere and empty symbolism. Countering this view is the argument that the fact the statement is made always has community value. The symbolic value, it is said, does not depend upon the sincerity, and sometimes, being ordered to apologize may make a person actually appreciate that they did wrong. This debate is not settled, so the most that we can say is that an apology has greater value where it is stated willingly – and that the best sign of willingness is that the apology be agreed to by the person given it.
An apology comes after the harm is done – it at best can help repair the harm by reducing the ongoing sting of the insult, suffering or indignity. In this way, it acts somewhat like general damages for pain and suffering, but it also has a larger purpose of promoting public policy and educating the community both about the specific wrong done and the general undesirability of the conduct. It vindicates the innocent victim, which has value both to that person and in the eyes of others.
Apologies will never replace damages or other remedies as compensation for wrongs, but in the right circumstances, they can be a valuable remedy. Otherwise, people would not be asking for them. Sometimes the most priceless things are what money cannot buy, like dignity.
(This article draws heavily upon the paper “Beyond Compensation: Apology as a Private Law Remedy” by Robyn Carroll, collected in The Law of Remedies: New Directions in the Common Law edited by Jeff Berryman and Rick Bigwood, Irwin Law, 2010)