Ontario appears to be the next Canadian province to ban drivers from using hand-held cell phones and devices with display screens, joining Newfoundland and Labrador, Nova Scotia and Quebec. These provinces have passed legislation that imposes fines and demerit point penalties on drivers who use cell phones or have display screens visible to drivers while operating a motor vehicle.

Ontario's Bill 118, the Countering Distracting Driving and Promoting Green Transportation Act, 2008 was introduced in the Provincial Legislature on October 28, 2008. The Bill received its second reading in November 2008 and has been referred to the Standing Committee for review.

As a result of the proposed amendments to Bill 118, the Highway Traffic Act ( the "HTA") will prohibit the operation of a motor vehicle with a television, computer or any other device with a display screen, if the display screen is visible to the driver. Further, motorists will be prohibited from driving while holding or using hand-held communication or entertainment devices, such as cell phones or mp3 players.

There are several exemptions to the proposed Bill 118, including GPS navigation devices, commercially-used logistical transportation tracking systems, collision avoidance systems and instrument display screens which provide information on the status of the motor vehicle's systems. Ambulances drivers, fire department vehicles and police department vehicles are also exempt, as are all drivers using a banned device to contact these emergency services.

This new legislation may have some important consequences for business owners whose employees use motor vehicles in the course of their employment. Section 207(1) of the HTA provides that the owner of a vehicle may be charged with, and convicted of, an offence under the HTA for which the driver of the vehicle is charged and convicted. This concept applies, for example, where an employee is charged under the amended HTA with the offence of using a hand-held cell phone while driving - the employer may be charged and convicted of that offence.

Currently, certain offences are specifically exempted from the application of this rule – for example, if a driver of a vehicle violates the U-turn prohibition under the HTA, then the owner is not subject to being convicted for that offence. The proposed amendment to the HTA does not currently contemplate that the ban on hand-held cell phone use while driving will be one of the offences specifically exempted from Section 207(1). As Bill 118 must still pass through Committee review and one additional reading in the Ontario Legislature before being brought into force, it is possible that the Bill may be amended to include the hand-held cell phone ban among those provisions exempt from 207(1).

A further concern for business owners whose employees use motor vehicles in the course of their employment arises from the fact that under the HTA, the owner of the vehicle may be held vicariously liable for losses or damages sustained by any person as a result of negligence in the operation of a vehicle by his employee in the performance of an employee's duties. The public policy reason behind the law of vicarious liability is derived from an employer's responsibility to control the careful execution by employees of their duties. In these circumstances, if the driver of a vehicle were to be involved in an accident caused by the driver's breach of the hand-held cell phone ban, the vehicle owner may be held liable for damages or loss to third parties resulting from the employee's cell phone use.

At law, there is a due diligence defence that may apply to the employer in these circumstances. It is only available if the employer can show that it had in place a written policy banning the use of hand-held cell phone while operating a motor vehicle in the course of employment and that the employer took reasonable steps to enforce the policy