As of October 26, 2009, talking on your cell phone, texting on your blackberry and, even watching your favourite DVD while you drive, will be prohibited. The Ontario government is poised to implement the Countering Distracted Driving and Promoting Green Transportation Act, 2009 which will include amendments to the Highway Traffic Act, to impose additional penalties on drivers. According to the Ministry of Transportation, drivers are four times more likely to be involved in an accident while using hand-held or hands-free cell phones while driving. In Ontario, motor vehicle accidents are the greatest single cause of traumatic workplace deaths. The penalties will affect not only drivers, but potentially also employers whose employees cause accidents while violating these new provisions.

In summary, the Highway Traffic Act, when amended, will prohibit a person from driving a motor vehicle if the display screen of a television, computer or other device is visible to the driver. In addition, it will be against the law to drive a motor vehicle while holding or using a hand-held electronic entertainment device or a hand-held wireless communication device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. Exemptions to the legislation include hands-free devices, the display screens of GPS navigation devices, and using cell phones to make 911 calls. The law does not apply to hand-held wireless or electronic entertainment devices if the vehicle is off to the side of the road, not in motion and not impeding traffic. In addition, police, firefighters and paramedics are exempt with respect to the display screens, and the wireless communication devices mentioned above.

Penalties include fines of up to $500, but there will be no demerit points upon conviction. Further, the Highway Traffic Act provisions with respect to careless driving will still apply. A careless driving conviction carries fines up to a maximum of $1,000, and/or a jail term of up to 6 months, along with 6 demerit points, and the possibility of a 2-year (maximum) license suspension.

The amendments to the Highway Traffic Act do not impose direct liability on employers or a conviction under these sections. However, employers must be cognizant of the principle of vicarious liability. An employer may be held liable for the negligent conduct of its employees where, for example, an employee is involved in an accident while acting in the course and scope of employment in violation of these new sections of the Highway Traffic Act. An employer may be found liable if it permitted or encouraged its employees to use cell phones or blackberries while driving in the course of their daily business. In addition, employers have the responsibility to ensure their employees’ safety while at work.

Other than the obvious that can be done by drivers (using hand-held devices in the hands-free mode, turning off cell phones, letting calls go to voicemail), employers are encouraged to develop policies, procedures and guidelines clearly setting out when and how cell phones and blackberries can be used in the course of employment. Educating employees to use common sense could not only save dollars but lives.

If you require assistance in drafting driver safety policies, please contact us.

Albert Campea
Labour and Employment Group
Tel: 905.276.0401
E-mail: acampea@kmblaw.com