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Bill 30 - Alberta Evidence Amendment Act, 2008

October 21, 2008 - Second Reading

Ms Blakeman: Thank you very much, Mr. Speaker. Sometimes the government gets it right, and they got it right this time. This is a good bill. You should be proud of yourselves for doing this. It’s exactly what should be done. For all the times I stand here and tell this government that I don’t like the legislation, it’s a delight for me to be able to stand here and say: I do like the legislation. So thanks for giving me just a little bit of a reprieve from my usual approach.

It’s refreshing for me as well, I’m sure, as for you. The history of an apology is an interesting thing, isn’t it? We’ve now progressed to a point where we’re really excited about passing legislation that allows us to say: “I’m sorry. I’m sorry that you’re in this situation. I’m sorry something bad has happened to you.” Even if you caused that thing that put them in a bad situation or made something bad happen to this individual, that shouldn’t stop us from expressing our regret or our compassion for somebody that’s in that situation. That, of course, is clearly what this bill is designed to do. We actually got to a point in our – what do you call it? – society where we were prohibited from offering an apology. In most cases we were not allowed to do that because of insurance liability, because as soon as we apologized, it was then seen as an admission of guilt or an admission of an action taken or not taken. If you apologized, your insurance policy would be revoked. Well, that’s sure put a chill on things, wouldn’t it? And it did put a chill on things. When we look at society overall and some of the truly horrendous things we have done to each other in the world – and they’re pretty bad – it seems that at a certain point you cannot hurt people and kill people anymore and move your society forward. When we look at places like South Africa, the only way that they could recover their entire society was to become involved in a truth and reconciliation exercise and to be able to genuinely and without recrimination say: I did this awful thing to you, and I’m sorry I did that. For people to be able to hear what happened to relatives or loved ones, to know what happened in their final minutes in many cases, was a huge relief to people.

That process is very interesting to me, that you can only take that kind of hatred and death and destruction, the miserable feelings and retribution to a certain point, and then it just doesn’t work anymore because all you do is kill everybody, and then everybody is dead, and you have nothing. You’ve got no workers. You have no economy. You have no currency. You have no way to take care of children. Nothing. You have desolation. You have to be able to start over. How do you start over? You start over with an apology. You start over with an admission that this did not go the way you would have wanted it to go. Very interesting.

I see that as a very positive move on behalf of a number of cultures. It didn’t start with us. It started with some other cultures that were really searching for a way to be able to move through some pretty dire times. I’m quite distressed to hear that our own attempt at that federally with a First Nations commission modelled around the same sort of truth and reconciliation model is, evidently, struggling currently, and one of its commissioners or its head commissioner has resigned. I hope we’re able to figure out what went wrong there and to adjust that to be able to move forward because there is another group of people and another series of relationships where they and we can’t seem to move forward in a really positive way until some certain things have been dealt with.

So this is an excellent idea. I went and read some of the background papers that were written following the passage by B.C. in 2006 of their act, and then an identical act was passed in Saskatchewan. There was a reference document that was done by the Uniform Law Conference of Canada in 2007 that sort of walks you all the way through, you know, why these things happen. It’s interesting because the only role that apologies used to have was to mitigate the punishment once there had been a conviction, once a decision about a liability had been reached. Then an apology was viewed as a good thing because it would mitigate, you know, the sentence that you got or the amount of fine that you were to pay.

How much better to be able to offer that apology to begin with as a genuine, compassionate, human desire. I know there are concerns that with the passage of this act people could offer insincere apologies. We see insincere apologies in this House sometimes. I think that for the most part individuals can tell when it’s an insincere apology. They know it in their hearts. It doesn’t ring true, doesn’t hit that little heartstring and go ping. It just falls flat. People are essentially common sense and pretty fair about things like this. If someone offers an insincere apology, they’re going to know it. They’re going to call the person on it and go, “Well, that wasn’t very sincere, and I don’t believe you,” which generally happens in this House although with a lot more table banging and yelling involved with it.

One of the other things that I noticed – my colleagues have talked about some of this, and I won’t go in great detail into a lot of it – is the power of an apology to reduce, particularly in medical circumstances, great personal pain. I’m thinking of – I cannot remember the name, and I’m apologizing in advance – the couple where the woman miscarried in the Calgary emergency room.

Mr. Liepert: Lundy.

Ms Blakeman: Lundy. Thank you very much. Yes. Thank you.

They came here, and I met both of them. We introduced them in the gallery. Boy, an apology to recognize the circumstances that Rose Lundy found herself in that day would have been very kind and I’m sure would have gone a great deal towards easing some of that family’s pain over the medical circumstances but also the circumstances that followed that.

There are some statistics here that 37 per cent of those involved in medical malpractice suits indicated that an explanation and an apology were more important than monetary compensation, and they might not have filed the suit to begin with if they had been given an explanation and an apology. I think the explanation part is often really, really important, especially in medical situations. People want to know why it went wrong, why something happened. There’s ample documentation given of where they have disclosure and apology policies in place so that, in fact, the amount of any actual settlement is significantly less. What’s been quoted to me here – again, I’m still on the Uniform Law Conference of Canada paper. They note that in Lexington, Kentucky, with the Veterans Affairs Medical Center only three cases have gone to trial with an average settlement of $16,000, compared to the average across the country of $98,000 in settlements, so almost five times as much.

Two simple words: I’m sorry. They sure make a whole lot of difference for people. Not that I would ever denigrate lawyers, but on the happy side of that they noted that annual lawyers’ fees have dropped significantly because the malpractice suits and notices of intent to sue dropped almost in half. So my apologies to all of those fine lawyers in the House and their colleagues outside of the House. It may mean less business to you. I’m sorry about that loss in your practice, but I think ultimately you would agree that this was the right way to go in putting this forward.

As I said when I started, sometimes this government gets it right, and they got it right here. My congratulations to the minister who is overseeing this and to the member who has in fact sponsored the bill. Job well done. Thank you.

The Acting Speaker: The provisions of Standing Order 29(2)(a) are available. The hon. Member for Calgary-Mountain View.

Dr. Swann: Thank you. I’d be interested in your comments about what jurisdiction a decision of this Legislature around this approach to apologies would carry. Would it apply across the board in Alberta? Would it go beyond Alberta? Would it affect institutions? Would it affect legal institutions as well as the lay institutions? How would it actually be implemented in terms of local organizations’ and institutions’ policy?

Ms Blakeman: Well, I’ll take a stab at this, and I’m sure that the minister or one of the many lawyers in the House can correct me if I’m wrong here. Essentially, this would come into play anyplace where an apology is currently either forbidden or comes into play in a court case. It’s usually based around either some sort of civil case where wrongdoing has been considered or involving insurance because it’s the insurance industry, particularly, that specifically prohibited that, the apology, for fear that it would admit liability.

Often there was a clause in the insurance policies that said: if you apologize, we cancel your insurance policy. So this will come into play for insurance companies that are writing policies. They note specifically the Limitations Act under 2(b), and they note specifically under 2(c) that it comes into play with the contract of insurance and will not allow any other enactment to “void, impair or otherwise affect any insurance coverage that is available, or that would, but for the apology, be [made] available, to the person in connection with that.” Those are the two kinds of starting gates. Where you get into this is around people taking something to civil court, which means that the criminal court is not available to them, so they’re looking for redress through a civil court. The other gate where it comes into play is through the insurance. It’s addressed both of those. The connection to the Limitations Act is important because it was the third point that was raised in the legal papers that I looked at. That was an important piece to be involved there. If I’m wrong, I’m sure I’ll be corrected, but I think I’m more or less on the right track.