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	Professional Practice and Liability on the Net


	“But You Said It Was OK”: The Defence of Officially Induced Error
	by Bernard LeBlanc
	February 2006 - Vol 7 No 5

	Most would agree that there seem to be more and more rules and regulations everywhere. This is as true for self-regulating professions as for any other field of endeavour. Practitioners therefore can't be blamed if they ask their regulator for advice from time to time, particularly about “tricky issues”. Most regulators provide some practice-related advice to their members but they are careful to ensure that it cannot be considered "legal advice". Accordingly, while many regulators will suggest that certain statutes, regulations, policies or other materials may be relevant to the person's inquiry, they will not provide more specific advice as to how the person should act in any given case. Part of the reason that regulators do not provide specific advice is because their role is inconsistent with the role of advisor. Regulators, after all, regulate. They are not in the business of suggesting to their members, or anyone else, how to avoid liability or otherwise behave in specific cases. Another concern is that a member may seek advice without necessarily (or intentionally) conveying all of the relevant facts to the regulator with the result that any advice will necessarily be incomplete and, perhaps, simply incorrect. Because the member may not provide enough information to the regulator and the advice that the member receives is therefore incomplete or based on insufficient information, the member may do something that the regulator thinks the member shouldn't have. Let's further say that the regulator brings discipline proceedings against the person and part of the defence is, "but you said it was OK". The Supreme Court of Canada recently held that there may in fact be situations where a practitioner can rely on the defence of "officially induced error" and escape liability. However, the Court also held that before someone can rely on the defence, the person must meet a number of requirements: • There must be in fact an error of law, or mixed law and fact. • The practitioner must have considered the legal consequences of his or her actions. • The advice was obtained from “an appropriate official". • The advice was reasonable although it was also incorrect, and, • The practitioner relied on the advice in committing the act to their detriment. Clearly, if regulators provide specific advice to their members in relation to specific issues or concerns, it is not difficult to foresee a practitioner claiming that they were only following the regulator's advice if they are later criticized (or disciplined). Therefore, while regulators understandably provide general advice to their members, they should avoid providing specific advice as to what a practitioner should do in specific circumstances. And regardless of the sort of advice that may be provided, regulators should also ensure that their advice is adequately documented, particularly where the advice is more than completely generic. [Professional Practice and Liability on the Net is a monthly Internet newsletter addressing issue of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 393 University Avenue, Suite 2000, Toronto M5G 1E6. Or, call 599-2200, ext. 232, or email: bleblanc@sml-law.com. Visit our website at http://www.sml-law.com. Comments and suggestions are also welcome. ]



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	Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.