Although "officially induced error" – being
misled by authorities – is a defence to many types of
charges including those under the Occupational Health and Safety
Act, it is rarely used successfully like it was in a recent
While not an occupational health and safety case, the decision
will be of interest to safety professionals and employers.
The defendant was under a Prohibition Order barring him from
driving any "motor vehicle" in Canada for a period of 12
months. While operating an "E-bike", an electric
bicycle, he was stopped by police. He was charged with
breaching his Prohibition Order. The court accepted his testimony
that he had contacted various police forces to ask whether
operating the E-bike would violate his Prohibition Order and was
told by a Toronto police officer that it would not. The court
found that the police officer's advice was in error: in fact,
the operation of the E-bike did violate the Prohibition Order.
The court stated that in order to establish the defence of
officially induced error, a defendant must prove that:
the error was one of law or mixed fact and law – not
of fact only
the defendant actually considered the legal consequences of his
actions (he did not simply assume that his conduct was legal)
the defendant obtained advice from an appropriate public
the public official's advice was reasonable
the advice was erroneous
the defendant relied on the advice
Here, the defendant had satisfied all of these factors.
The error was one of law (whether operating the E-bike would
violate his Prohibition Order); the defendant had thought about
whether it was legal for him to operate the E-bike while under the
Prohibition Order; he obtained advice from a police officer, an
appropriate public official; the police officer's advice was
reasonable, given that E-bikes are a relatively new phenomenon; the
advice was erroneous; and the defendant relied on the advice when
he set out for his bike ride.
Although the officially induced error doctrine is rarely
applied, employers should keep it in mind when seeking advice from
Ministry of Labour inspectors. If an employer seeks advice
from an inspector regarding the Occupational Health and Safety Act
or regulations, reasonably relies on that advice, and the advice
turns out to be incorrect, the employer – if charged
– may be able to raise the defence of officially induced
error. For that reason, employers should carefully document
all such advice received from government safety inspectors.
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