Ontario employers may soon have to "pay up" if their employees don’t "hang up" when driving. The Ontario government announced yesterday that Bill 118, its law banning the use of cell phones and other mobile devices while operating motor vehicles, will come into force October 26, 2009.

How Has the Law Changed?

Effective October 26, 2009, drivers will be prohibited from holding or using a hand-held wireless communication device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages, or any other hand-held device that is unrelated to the safe operation of the motor vehicle. The law also bans individuals from driving if the display screen of a television, computer or other device in the motor vehicle is visible to the driver, although this latter prohibition does not apply to global positioning system navigation devices, commercially-used logistical transportation tracking systems, collision avoidance systems, or display screens providing information regarding the status of systems in the vehicle.

The law contains a number of practical exemptions. First, a driver may use a communications device that is "hands-free" (for example, a Bluetooth device or other headset). Second, a driver may use a hand-held wireless communication device to contact police, fire or ambulance emergency services, or where the driver’s vehicle is lawfully parked or it is off to the side of the road without impeding traffic.

Any driver who violates the prohibitions noted above could receive a fine of up to $500.00. If a driver is also charged with careless driving, the penalties upon conviction potentially include a fine of up to $1,000.00, six demerit points, and/or jail time of up to six months.

Can Employers Be Held Liable?

Because these offences are directed at the driver of a motor vehicle, any penalties under the Highway Traffic Act will be imposed on the employee upon conviction, even if he or she was making business-related calls or driving a company vehicle. However, if an employee is in a motor vehicle accident while using a cell phone or BlackBerry for work purposes, an employer may be held vicariously liable for damages that result. If the employer provided the mobile device to the employee, the employer may even be held directly liable.

While there are no Canadian cases to date that have considered this issue, there are a number of examples in the United States:

  • In Georgia, a paper company reached a settlement of $5.2 million with a woman who had her arm amputated after being rear-ended by one of its employees who was talking on her company cell phone;
  • In Florida, a jury returned a verdict of $21 million against a lumber company after an employee was on his cell phone for business purposes and struck and severely injured an elderly woman; and
  • In Pennsylvania, an investment banking firm paid $500,000 to settle an action brought by the family of a motorcyclist killed in an accident involving one of the firm’s brokers who had been talking on his cell phone at the time.

What Should Employers Do to Prepare for these Changes?

Before these changes come into force, employers should take steps to educate their employees about the dangers of driving while distracted and to ensure compliance with Bill 118. Some immediate actions could include:

  • Reviewing and updating your existing company vehicle or safe driving policies to reflect these changes to the law;
  • Implementing specific guidelines to ensure compliance with the law (for example, requiring employees who make business calls from their vehicle to use a hands-free device at all times, or to pull over while making telephone calls or sending texts or e-mails);
  • Issuing hands-free equipment to employees who regularly make business telephone calls from their car;
  • Deciding whether it is advisable to prohibit employees from making telephone calls or sending texts or emails while operating company-owned vehicles;
  • Educating employees on the new Highway Traffic Act changes, and reinforcing the importance of safe driving when operating a company vehicle or conducting company business;
  • Reminding managers and supervisors of the policy, and ensuring that they are not causing violations of the policy when telephoning, texting, or e-mailing employees who are on the road.

As always, an employer should ask employees to acknowledge any new or amended policy in writing, and the policy must be consistently enforced by the employer. Through these steps, employers and employees will be able to create and maintain a culture of safety, inside and outside of the workplace. Further, in the event that an employee has an accident while driving a company vehicle or conducting business from their car, an employer may reduce its liability if it can demonstrate a proactive effort to promote safe driving and compliance with the law by its employees.