Has your company developed policies and practices relating to the use of cell phones and other handheld devices? In order to protect employee safety and guard against liability, employers should implement a policy that is consistent with theprohibitions against hand-held devices.
When Ontario’s Bill 118, Countering Distracted Driving and Promoting Green Transportation Act, came into force on October 26, 2009, the province joined more than 50 jurisdictions worldwide, and four other provinces, banning the use of handheld devices while driving.
Although careless driving associated with the use of electronic mobile devices can be dealt with under existing provincial and federal laws, including dangerous driving and criminal negligence, now Ontario, Quebec, Nova Scotia, and Newfoundland and Labrador have legislation banning cellular phone use while driving. British Columbia plans to ban the devices early in 2010. In Ontario, the first three-month period will focus on educating drivers, with enforcement and ticketing commencing on February 1, 2010.
The amendments under Ontario’s legislation prohibit the use of handheld electronic devices while operating a motor vehicle on a traveled part of a road, regardless of whether the vehicle is in motion at that particular moment. Specifically, the operation of a motor vehicle is prohibited while the screen of a television, computer, or other device is visible to the driver. The prohibition extends to cellular phones, dialing, BlackBerrys, texting, hand-held GPS’s, portable video games, and portable audio and video players. Existing penalties under the Highway Traffic Act will apply as appropriate to the new offences under Bill 118.
The ban does not apply to the use of the above devices in the hands-free mode or the use of a mobile device to contact emergency services and a person may drive a motor vehicle on a highway while pressing a button on a hand-held wireless communication device to make, answer or end a phone call. The display screens of GPS navigation devices and other systems as prescribed, which provide information regarding the status of systems of the motor vehicle, are exempted from the prohibition. Drivers of ambulances, fire department vehicles and police department vehicles are also exempted. Further exemptions are set out in Regulation 366/09 including time-limited exemptions for certain commercial activities. For instance, commercial truck drivers may use two-way radios until January 1, 2013.
Although the penalties under the Highway Traffic Act apply only to individual drivers, employers that allow their employees to use electronic devises while driving in the course of their employment face serious potential risk under the amendments. For example, if an employee has an accident while speaking on his or her mobile phone with a client, the employer may be held vicariously liable. Further, the employer’s CVOR record may be affected negatively if an incident or accident arises as a result of a distracted driver.
It may be best to ban the use of electronic devices altogether while on company time, or in the alternative, if electronic communication is an important and necessary part of the job, then employers should ensure that their employees use hands-free devices.
In developing a corporate policy, employers should thoroughly review the legislation, along with any pertinent regulations (Regulation 366/09 in Ontario, for example), which may set out further exemptions. The policy should clearly communicate the law, the company’s own rules, and consequences of any breach of the policy. Employers should also ensure that once implemented, the policy is communicated to all employees in a meaningful way that allows for any questions or concerns to be addressed in an effective manner.
It will also be prudent for employers to provide training to their employees on the safe use of handheld electronic devices while operating a motor vehicle to limit their liability under occupational health and safety legislation.
Goldie Bassi is an Associate Lawyer with Gowlings LLP. She practices employment, occupational health and safety, and workers’ compensation law. She may be reached by e-mail at