The proliferation of workers turning their vehicles into rolling workplaces—using cell phones, radios, GPS systems, facsimiles, computers and other communications devices while driving—has caused Ontario to join several other Canadian jurisdictions in passing a new “distracted driving law.”1 Most readers will know by now that Ontario has enacted Bill 118, which amends the Highway Traffic Act, to ban the use of a number of devices, including wireless hand-held communications devices such as cell phones, while driving.

The new legislation takes effect on October 26, 2009. The government has announced that there will be a 3-month period following October 26, 2009, to focus on educating drivers about the ban. Police will start issuing tickets to violators on February 1, 2010. Ontario has passed Regulation 366/09, which also comes into effect October 26, 2009, and completes the list of exemptions from the distracted driving ban for a wide range of law enforcement officers, public functions, and commercial activities, some of which are time limited until 2013. Understanding the details of this highway traffic enactment has become important for employers wishing to ensure compliance with these new requirements by their workforce. Many businesses have acted, even in the absence of a specific distracted driving ban, to create cell phone bans during operation of company vehicles, or cell phone use policies. This update reviews the new Ontario ban and considerations for employers for developing policies and procedures relating to cell phone and electronic device use.

THE ONTARIO BAN

A. Visibility of TV, Computer, Video Display Screens

The first matter that Ontario’s new law bans is driving a motor vehicle where the display screen of a television, computer or other electronic device is visible to the driver. The Highway Traffic Act amendments (“HTA”) and Ontario Regulation 366/09 (“Regulation”) clarify that a GPS providing navigation information is acceptable as long as it is connected directly into the controls of the motor vehicle, or placed securely in or mounted to the motor vehicle.

Other exempt devices, persons or vehicles are set out in the HTA, and expanded upon in the Regulation, and include:

  • logistical transportation tracking system devices used for commercial purposes;
  • drivers of police and enforcement officer vehicles (defined broadly to include park wardens, conservation officers, provincial offences officers, municipal law enforcement officers), and drivers of ambulances, fire department vehicles;
  • automobile technicians or mechanics test driving motor vehicles and checking diagnostic information;
  • employees of public utilities using mobile data terminal displays;
  • employees of road authorities while engaged in road patrol, repair, maintenance or construction activities using mobile data terminal display screens;
  • courier delivery vehicles, tow trucks or road assistance service vehicles using mobile data terminal display screens;
  • drivers of taxi cabs and limousines licensed to provide passenger service.

B. Hand Held Wireless Device Ban

The HTA bans the holding or use by drivers of hand-held wireless communication devices that send or receive telephone communications, electronic data, email or text messages while driving. Drivers are only permitted to operate wireless communication devices, such as a cell phone or BlackBerry, in “hands-free” mode. Drivers are also prohibited from driving while holding or using a hand-held electronic entertainment device such as an iPod or other similar media player.

The HTA and Regulation create a number of further exceptions to the use of hand held electronic devices, some of which are time limited. They include the following:

  • a driver using a device who is off the roadway or parked, not in motion, and not impeding traffic;
  • drivers of police, ambulance, fire department vehicles (the same broad definition of police and law enforcement officers set out above applies for hand held electronic devices);
  • a driver using a hand held electronic device to contact ambulance, police or fire department emergency services.

A number of time limited exemptions (until January 1, 2013) have been created for certain public functions and commercial activities, for drivers who use two way radios with separate hand held microphones, such as CB radios. These radios are defined in the Regulation. The time limited radio exemptions apply to the following, while performing their job duties:

  • drivers employed by public utilities and electrical distribution companies;
  • employees of a road authority engaged in road patrol, repair, maintenance or construction activities;
  • drivers of commercial motor vehicles;
  • drivers of courier delivery vehicles, tow trucks or road side assistance service vehicles, licensed taxi cabs and limousines, street cars and road building machines.

Employers should also note that the definition of “motor vehicle” for purposes of the hand held device ban includes farm tractors, road building machines, motorized snow vehicles and streetcars.

C. Cell Phone and Electronic Device Policies and Bans

Due to repeated tragic accidents occurring because drivers were distracted by electronic communication devices, a chorus of support for cell phone and electronic device policies and bans has arisen. The potential for vicarious liability by employers for tragedies arising when one of their employees is driving while texting, talking or viewing a computer screen in their rolling offices should cause every employer to consider promptly implementing policies and procedures banning or restricting the use of such devices. Even in jurisdictions where the use of electronic devices is not explicitly banned, drivers can face charges for distracted or careless driving, and employers could be vicariously liable for failing to control the distracted driving behaviour of their workforce.

A written policy setting out the employer’s expectations, including parameters for acceptable use of devices and consequences for violations, should be created and enforced. When establishing a policy, employers will wish to consider the following:

  • Keeping the policy and devices covered broad and inclusive. Numerous devices can fall under highway traffic bans and definitions of “wireless hand-held communication device,” so the policy should be drafted in such a way that it covers all such technology, not just cell phones. Policies should include visible display screens of televisions, computers or other devices, and entertainment devices;
  • Making sure that all persons in the workplace (including workers, supervisors, contractors, management, etc.) and the use of all devices during working hours (both personal or business related) are covered by the workplace policy;
  • Ensuring that all prohibited uses are clearly set out, including use of devices while driving or while engaged in particular tasks such as operating equipment or machinery;
  • Providing for permitted uses. Any policy should set out when and where the devices can be used (i.e. when pulled over to the side of the road, or when using hands-free mode). If permitting use in hands-free mode is determined to be an acceptable practice, the employer should consider supplying employees with hands-free technology and providing training on its use.

Lastly, and difficult as this may be, in order to facilitate the acceptance and compliance with such policies and bans, employers will have to provide an environment where it becomes accepted that employees will be out of contact for periods of time while they focus on driving. Let employees know that an email does not have to receive an instant response and that calls should be put through to voicemail until drivers are safely stopped off road. Where an employee will be driving for a prolonged period of time, the policy could suggest that employees consider stopping periodically on their route, at a safe location such as a parking lot or legal street parking spot, to retrieve emails and voicemails and respond to those that require a response before the employee reaches his or her destination.