If apologies are so helpful, why then are they sometimes so difficult to obtain in cases involving allegations of sexual abuse within faith communities? How is pastoral care to be offered when Church leaders are told by insurers not to speak with those alleging abuse?
To explore possible answers to such questions, I spoke with Elizabeth Grace, who brought a wealth of experience, a laser-focused legal mind, and a compassionate heart to our discussion.
Grace, a partner at Lerner’s LLP, a law firm based in Toronto, has 30 years’ experience in sexual abuse and harassment claims. She has represented plaintiffs and defendants in cases involving such organizations as the Anglican, United, Presbyterian, and Roman Catholic churches, as well as many other non-profit organizations. She has also conducted and been involved as counsel in investigations. Although she primarily practices in Ontario, she also has experience with cases in Saskatchewan, Manitoba, and British Columbia.
We discussed Apology laws, such as the Apology Act, 2009 of Ontario, that make it possible for someone to express sympathy or regret without having their words used as an admission of fault or liability in civil cases.
Despite the existence of such recent laws enacted specifically to encourage apologies, Grace finds enormous reluctance by lawyers and particularly insurers to offer up apologies outside of the mediation context (where conversations are ‘without prejudice’, that is, that any statements made during the mediation would not be put before a court as an admission of guilt or liability). There remains a concern that somehow the apology will be used against the person or institution offering it.
Based on her experience representing both sides of cases, she is “a big believer in offering opportunities to meet with the other side and to hear and to receive an apology, often without lawyers involved.” Apologies, she finds, are beneficial both to plaintiffs and defendants: plaintiffs can find them healing, and defendants find that they “soften up the plaintiff a little bit [towards them], but appropriately so.”
“It has to be a genuine apology,” Grace cautions, “so, the ‘I’m sorry you feel that way’ doesn’t cut it.” She finds that some apologies are “grossly inadequate and the good of the apology is almost immediately erased.” For example, Grace has seen apologies that were clearly drafted by a lawyer and such inauthentic statements can inflame rather than diminish tensions.
Grace pointed to a positive example of where a Catholic bishop was present for a mediation and when it was concluded, he met with the plaintiff without lawyers present. This meeting not only offered an opportunity for the plaintiff to receive an apology, but also to provide feedback on how to make the complaint process better for others.
In another case, a bishop was present but didn’t say a word throughout the mediation process. Grace, who was acting for a group of Indigenous plaintiffs abused as children by an Anglican priest, said: “I think it would have gone a long way if the bishop had opened his mouth and said something compassionate.”
It was, in Grace’s eyes, a huge missed opportunity. She advocates for having not only a claims adjuster for the insurer present at mediations, but also an actual representative of the organization, saying “it makes a big difference” for plaintiffs who need to feel heard, and are also looking for accountability from the organization they consider responsible.
According to Grace, however, if a client is very disenchanted with the organization, they would not benefit from hearing an apology, “but in most cases, I think it’s very important [to offer one] particularly in the faith community context”.
Nervous insurers, then, and not hard hearts seem to limit access to pastoral care. It is time to explore how to reduce insurer anxiety.