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 problems fixed.

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.

Durham (Regional Municipality) v. D. Crupi & Sons Ltd., 2015 ONCJ 488 (CanLII)