Officially Induced Error

Payne v Mak, 2017 ONSC 243 (CanLII)

[171] In any event, a defence of officially induced error would not have been available to the plaintiffs in this case. The elements of that defence are set out in R. v. Cranbrook Swine Inc., 2003 CanLII 41182 (ON CA), [2003] O.J. No. 1433 (C.A.) at para. 52:

There are five elements or components in the defence –

(1) the accused must have considered the legal consequences of its actions and sought legal advice,

(2) the legal advice obtained must have been given by an appropriate official,

(3) the legal advice was erroneous,

(4) the persons receiving the advice relied on it, and

(5) the reliance was reasonable…

[172] In this case, none of those elements are present. The plaintiffs sought no legal advice at any time from the City, nor did the City provide any such advice. In cross-examination, Hilary Payne admitted that he had had no communication from the City whatsoever – good, bad or indifferent – following the 1999 fire. It is worth noting that Hilary Payne did not testify at the preliminary inquiry, so Campbell J. did not have this evidence before him.