I have recently acted for several clients who found themselves charged with various infractions of the Building Code Act as a result of reliance upon the informal advice of various City Officials.

The rules and regulations which affect any build ranging from major renovations to even small projects can be incredibly confusing to anyone trying to ascertain their rights and obligations. Indeed, it is often virtually impossible for a layman to even locate the regulations which apply. Trying to be responsible, the home or cottage owner attends the counter of the local Building Department and asks direct questions relating to the project. Feeling as though the bases are now covered, the owner tackles the project and is subsequently shocked when formal charges are laid. The charging body has turned a deaf ear to protestations that “this was approved” or “this is what I was told”. Most certainly it will be difficult to find anything in writing from the ”approving” official such that the accused is now left to defend his or her actions via a trial.

In Canada there is a general presumption that ignorance of the law is not an excuse however the Supreme Court of Canada in R. v. Jorgensen, [1995] 4 S.C.R. 55, has enunciated a test for the defence of Officially Induced Error. It is not simple and requires the accused to prove on the balance of probabilities that the following six criteria are met:

1. That an error of law or of mixed law and fact was made;
2. That the person who committed the act considered the legal consequences of his or her actions BEFORE committing the act;
3. That the advice obtained came from an appropriate official;
4. That the advice was reasonable;
5. That the advice was erroneous; and
6. That the person relied on the advice in committing the act.

Underlying the six elements of the defence is the broad principle that an individual not be held culpable when he or she is induced by an official’s conduct into relying on a reasonable but incorrect understanding of the law. The purpose of the defence is to prevent injustices where the state approves conduct with one hand and seeks to bring sanction for that conduct with the other.