The Government of Ontario has announced that the province’s new law banning the use of cell phones and other mobile devices while operating motor vehicles will come into force on October 26, 2009. This "e-alert" addresses some of the key employment-related legal risks arising from this new law and addresses some of the proactive steps that employers can take to protect against potential liability.

The Legislation

Beginning October 26, 2009, new amendments to the Highway Traffic Act will prohibit Ontario drivers from holding or using hand-held wireless communication devices, such as cell phones and BlackBerry® devices, while driving a motor vehicle in the Province of Ontario. Importantly, the law permits drivers to continue to use such devices in "hands-free" mode. In addition, drivers will be entitled to use hand-held devices to contact police, fire or other emergency services or where the vehicle is off the road, not in motion and not impeding traffic.

The new legislation also bans the presence of the display screen of a television, computer or other device visible to the driver while driving a motor vehicle. The prohibition exempts global positioning system (GPS) navigation devices, collision avoidance systems and instruments, gauges and systems providing information regarding the status of the vehicle’s system.

Fines of up to $500.00 may be imposed on drivers who are caught texting, typing, e-mailing, dialling or chatting using a prohibited hand-held device. The law also provides for licence suspensions, loss of demerit points, and imprisonment as a penalty for a violation of the new provisions.

The Government has indicated that police services will not be enforcing the new law until February 1, 2010 in order to provide a three-month grace period for drivers to educate themselves about the new rules and to ensure they take necessary steps to comply with their new driving obligations.

Legal Risks for Employers

Employers will be relieved to learn that the new law does not permit fines or other penalties to be levied against employers for offences committed by their employees in the course of their work duties. The offences created under this new law are exclusively directed at the driver of a motor vehicle whether or not he/she is working at the time of the offence.

That said, employers should be aware that they may not be immune from civil liability in circumstances where an employee is involved in a vehicle accident while using a hand-held device for employment-related purposes. For example, an employer may be found vicariously liable simply because the employee was engaged in work-related duties at the time of the accident. Further, an employer could be found directly liable if the employee was using a hand-held device provided by the employer or was driving an employer-owned vehicle. Employers should consider reviewing their liability insurance policies to determine whether they may be subject to any coverage exclusions that are triggered by the use of hand-held devices.

While the issue of employer liability relating to the use of cell phones by employees while driving has yet to be reviewed by Canadian courts, there have been a number of high-profile decisions from the United States in recent years in which employers have lost multi-million dollar lawsuits in this area. In Dyke Industries, for example, an Arkansas-based company lost a $21-million lawsuit for personal injuries sustained by the plaintiff in a car accident caused by an employee who was using a cell phone for a sales call at the exact moment of the accident.

Employers should also consider their general obligation under the Ontario Occupational Health and Safety Act to take every reasonable precaution to protect the health and safety of their workers. This duty could reasonably be interpreted by the courts as requiring employers to, for example, establish workplace policies and provide worker training regarding the use of hand-held devices while driving.

How Employers Should Respond

In preparation for these pending changes, Ontario employers should consider taking the following steps to minimize their potential liability and protect the health and safety of their workforce:

  1. Develop and Implement a Cell Phone/PDA Use Policy. Employers should take steps to develop and implement a policy that sets out limitations on their employees’ use of cell phone and BlackBerry® devices and is consistent with Ontario’s new legal standards. At a minimum, the policy should prohibit the use of hand-held devices while driving at all times unless the device is used in "hands-free" mode or the vehicle is off the road and not in motion at the time of the call.
  2. Educate Employees About Their Legal Obligations. Employers should develop a communications and mandatory training strategy to ensure employees are fully aware of company policy governing cell phone use and their new obligations under the Highway Traffic Act. Employees should be required to sign a form acknowledging that they have been informed about the policy changes, and the form should be kept in each employee’s file.
  3. Review Job Duties and Responsibilities. Employers should consider whether any of their employees are operationally required or expected to be responsive to calls and e-mails while in transit. These employees should be provided with clear guidance for placing and receiving calls and e-mails while driving, and should be protected from reprisals for failing to answer calls or e-mails while in transit.
  4. Consistently Enforce Disciplinary Measures. Employers should consistently enforce policies governing cell phone use by issuing warnings and, where appropriate, disciplinary measures commensurate with the severity of the infraction.
  5. Provide Hands-Free Devices. Where appropriate and feasible, employers may consider issuing hands-free devices to employees, particularly those employees who are required to use cell phones and other devices frequently throughout the workday.

Conclusion

By taking proactive steps to address Ontario’s new law governing cell phone use while driving, employers can reduce their potential liability, help promote a culture of worker safety, and ensure compliance with the law.