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Occupational health and safety alert - "officially induced error" defence narrowed

Many accused corporations charged with occupational health and safety, or other regulatory, offences point to reliance on past official advice for their actions. This argument - the "officially induced error" defence - is an important form of defence for companies that deal frequently with inspectors or permit-issuing authorities. The argument is essentially this: if officials approve, or do not object to, a company's actions or practices that later turn out to be illegal in some respect, the company should not be prosecuted for its "officially induced" mistake.

Employers charged with violations of the Occupational Health and Safety Act should take note of a recent Ontario Court of Appeal decision that may restrict the defence of "officially induced error". In Maitland Valley Conservation Authority v. Cranbrook Swine (April 28, 2003), a hog farm took various regulatory steps and obtained a building permit before opening a storage tank. Once the farm started to build the tank, however, it was charged with violating environmental laws. It argued that, because it had relied upon official advice before proceeding, it should not be considered guilty of breaking the law.

The Justice of the Peace and the lower court agreed, barring the prosecution on the grounds that the farm's actions were a classic case of officially induced error. However, the Court of Appeal reversed the ruling and found that the farm may well have acted in bad faith when, having obtained a building permit, it did not ensure that the construction complied with the environmental rules.

The lesson for employers is that an inspector's agreement with, or failure to criticize, a working practice does not mean that the approach has been "approved" by the Ministry of Labour in such a way as to later constitute a legal defence. An employer, supervisor or other party under the Occupational Health and Safety Act remains obliged to ensure that a working practice is safe and legal, no matter what official advice they may have obtained.

For more information about this case or occupational safety and health matters, please contact Jacques Emond at (613) 940-2730.