The defence of "officially induced error" is rarely
used successfully, but in a recent Highway Traffic Act
case, it won the day.
A company in the business of construction and snowplowing was
charged under the Highway Traffic Act with driving a
snowplow on a highway without a permit, after the out-of-service
snowplow was driven to a garage to have some engine/exhaust
The company proved that it had visited an Ontario Ministry of
Transportation (MTO) office counter and was told that the snowplow
was exempt from the permit requirement. The company
then made inquiries of an MTO official who confirmed in an e-mail
that, as the company understood it, there was a snowplow
"registration exemption" under the Highway Traffic
Act. The official was wrong: the exemption applied to weight
requirements, not to registration (permits).
The court decided that the company had established the
"officially induced error" defence that applies to
regulatory charges (including occupational health and safety
charges). The company had committed an "error of
law"; it had thought about the legal consequence of its
actions; it had received advice from an appropriate official; the
advice was reasonable; the advice was erroneous; and the company
reasonably relied on the advice.
The company was thus not guilty of the offence of failing to
obtain a permit for the snowplow. This decision is a reminder
that the little-used defence of "officially induced
error" is alive and well. Employers charged under occupational
health and safety legislation after being misled by government
safety officials, should consider arguing this defence.
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