To Apologize Or Not To Apologize

What are Apology Laws?

 

The Achilles Heel of Courteous Canadians: Apologizing!

 

Oh no! You got into a car accident with another driver, and in the stressful nature of the moment, you found yourself apologizing to the other driver and suggesting you were the one to blame. Do your apology and comments you gave in a vulnerable moment hurt your potential legal claim?

Saying you’re sorry: does this hurt your claim?

 

The answer: not necessarily. Even before changes in our provincial “statutes” – (statutes are documents that set out the controlling rules in a particular area of law in a province) – for most provinces, the courts would consider an apology as one factor among others when trying to determine whether a party was at fault in a civil lawsuit.

In other words, giving an apology wouldn’t be a slam dunk to find someone at fault in a civil lawsuit, but it could help the judge determine who was.

For example, in the case of McCluskey and McDougall v. Nixon, after the car accident, the parties got out of their cars and spoke to each other. The plaintiff claimed that the defendant apologized to her for causing the accident. However, the defendant explained that he had not apologized for causing the accident, but rather was just apologizing for having spoken to her rudely at first in the heat of the moment. The court considered both parties’ explanations for the “apology” and the evidence in support or against each story when deciding who was at fault for the accident.

Nowadays however, most provinces have controlled the definition of what an “apology” means in a civil lawsuit. In Alberta, rules about how to use evidence of an apology are controlled by section 26.1(1) of a statute called the Alberta Evidence Act.

In a nutshell, this section of the statute says that for civil lawsuits (which includes car accident claims), apologies given by someone involved cannot be used as evidence to determine their fault. In addition, giving an apology won’t cancel out your insurer’s duty to defend you if someone sues you after a car accident.

This section means that a court can’t consider what an apology given in the moment means toward finding someone responsible or not anymore, like it did in the case of McCluskey. This provides some legal protection to those of us who in good faith express an apology at the scene of an accident without realizing how it can affect a legal matter.

That said, keeping in mind our earlier blog on things you should do to protect your legal rights – it is best practice to just remain as calm, courteous and neutral as possible at the scene of an accident, and not say anything more than necessary to the other people there – particularly concerning your thoughts about who was responsible or how the accident occurred. Those decisions are best left to your insurance company and lawyer, should you choose to hire one.

Will my personal injury settlement have any impact on my AISH benefits?

Navigating the recovery process after being injured in an accident can be daunting on its own, and you may have additional considerations if you are also receiving AISH benefits. It is important to know and consider how a personal injury pay out can affect your financial situation if you are receiving AISH.

What are the eligibility requirements for AISH?

Assured income for the Severely Handicapped (AISH), is a government program which provides financial as well as health benefits to those with permanent medical conditions, if the medical conditions prevent someone from being able to support themselves.

There are certain eligibility criteria in order to qualify and continue to receive AISH. Typically, your eligibility is determined based on you and your spouse’s income, as well as any assets that you may have. The total value of your assets cannot exceed $100,000.

Certain forms of income and assets are considered exempt when considering eligibility. These exemptions include but are not limited to income tax refunds, or disability savings plan (RDSP) payments.  Other forms of income and assets, however are considered non exempt. A settlement can be an asset which is considered non-exempt, and is counted when it comes to eligibility.

Temporary Asset Exemption

You have 365 days to invest money that is not considered income into an exempted asset, otherwise, the money will be considered non exempt. An option for a client who is receiving AISH and receives a personal injury settlement would be looking into a structured settlement. A structured settlement is when the settlement is paid out regularly, over a period of time. Typically, the payments are once a month.  A structured settlement may be a good option because it is exempt by AISH. Another option could be investing the money into a trust or a Registered Disability Savings Plan, or another exempt asset.

What should I do if I receive a settlement for my personal injuries?

You remain responsible for reporting any changes to your financial or medical situation. If you receive a settlement, it is important to report your settlement to your AISH caseworker. Your settlement pay out may impact your eligibility for AISH, and your caseworker is also typically in the best position to be able to determine this for you.

What happens to my existing personal injury claim if I get into another car accident?

After being injured in a car accident, a lawyer can help guide you through the process of putting forward a claim to compensate you for the injuries you sustained in that accident. But what happens if you get into another accident before you are able to settle the claim for your first accident? This blog will look at the options that you have if you find yourself in this common situation.

What should I do if I am in a second accident?

If you are in a second accident while you still have an existing claim open for a first accident, the steps taken immediately following the accident will be no different than your first accident. You can read about the steps to take in our FAQ here.

However, one additional step will be contacting your personal injury lawyer as soon as possible to discuss how this new accident can impact your existing claim. Depending on the circumstances of your case, your lawyer may recommend looking at proceeding with a “global settlement” for your claims.

What is a global settlement?

A global settlement involves settling more than one claim at the same time. Although you will need to file a separate lawsuit for each accident you are involved in, and potentially deal with different insurance companies for each accident, with a global settlement, each of these claims would be dealt with at the same time and settled together.

Should I settle my accident claims together or separately?

There are a couple of factors to be considered in determining whether to settle your car accident claims together as part of a global settlement, or separately as individual claims. Some of these factors include:

  • The time between the accidents
  • The status of your existing injuries from earlier accidents at the time of the later accidents
  • Whether any new injuries were sustained in the later accidents

A personal injury lawyer will be able to look at the facts of your specific case to determine the best course of action for settling your claims, to make sure that you are being fully compensated for all of your injuries.