Lawyers Helping Lawyers
By Craig Kinsman, Executive Director, Assist

Twenty years ago, a small group of Alberta lawyers wanted to help other lawyers experiencing personal difficulties. They formed Assist. That tradition of lawyers helping other lawyers continued in 2008 in a number of remarkable ways.

For example, a group of the recent Queen's Counsel appointees commemorated their good fortune (earned after many years of exemplary service to our profession) by organizing a campaign to encourage the 2008 QC class to donate to Assist. Not to be outdone, a group of 2006 Q.C. appointees took up the idea and encouraged their 2006 cohorts to support Assist. These campaigns have raised just over $18,000 and counting. These leaders in our profession are hoping they have started a new tradition of giving back that might be emulated by future QC's.

The Calgary Bar Association also provided significant funding for Assist in 2008 by generously donating funds raised from their annual golf tournament.

Beyond these prominent efforts, Assist has gratefully received financial donations from members of the Law Society from all parts of Alberta. We've also seen significant volunteer efforts throughout the year that have directly impacted the lives of those in need and the profession generally.

These contributions have come in addition to the ongoing support we receive from the Law Society of Alberta, the Canadian Bar Association (Alberta), Burnet, Duckworth & Palmer LLP and the many other law firms, corporations and individuals who make it possible for Assist to exist.

Thanks to all of you. Your time and donations allow us to continue to help lawyers, articling students and their families in personal distress. Assist is an independent, charitable society. For more information please visit our website at www.albertalawyersassist.ca

The Healing Power of "Sorry"

By J.R. (Roy) Nickerson, Q.C., Chair, Civil Practice Advisory Committee

It seems rather fitting that at a time when Canadian Parliament struggles for the appropriate words of atonement in an attempt to heal the wounds related to aboriginal residential schools, the Government of Alberta is adopting "Apology" Legislation. Besides the obvious, the raison d'être of the legislation is to protect an insured from being denied coverage because his or her words of contrition may constitute an admission of liability, which may be proscribed by the wording contained in an insurance policy. The wording of the legislation closely follows that of Saskatchewan and other jurisdictions and defines an apology as:

"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..."

And further an apology does not:

"...constitute an express or implied admission of fault or liability..."
"...void, impair or otherwise affect any insurance coverage... and shall not be taken into account in any determination of fault or liability in connection with that matter."

Nor is it: "admissible in any court as evidence of... the default or liability... of the person in connection with that matter."

The latter provision has the potential to deny a victim of cogent evidence of liability and for that reason is of dubious value. When a cyclist bounces off the bumper of a tort-feasor's SUV, he or she, in their amnesic state, may not recollect exactly how the accident happened, but may recollect a later admission by the tort-feasor that they were regretfully in the wrong place at the wrong time so far as the rules of the road are concerned.

The above concern aside, there is no doubt that the time has come for something new to be injected into a compensation system where oft times financial compensation is inadequate to address something as elusive as "loss of enjoyment of life." Whether the words used are truly heartfelt or merely exculpatory utterances, motivated by nothing more than a desire to escape the consequences of carelessness, they may add a new and useful dimension to the present process.

It is obviously impossible to quantify the value of well timed and well placed words of regret or the taking of responsibility for an injury arising out of a negligent act. Some American jurisdictions are experimenting with the power of apology in the medical malpractice context. How often is a Plaintiff motivated to pursue a claim not so much by the pain inflicted by a very human and momentary lapse but by the prolonged and vehement denial of liability through years up to trial, during discoveries and interlocutory wrangling?

Whether the apology is in a form of acknowledgment of error or a request for forgiveness, it certainly can't hurt to have it added to the option of advocates involved in dispute resolution.