On April 23, 2009, Bill 118, Countering Distracted Driving and Promoting Green Transportation Act, received Royal Assent and will come into force at the end of October. The Bill, among other things, amends the Highway Traffic Act making it an offence to drive while holding or using a hand-held wireless communication or electronic entertainment device.

Although careless driving associated with electronic mobile devices can be dealt with under existing provincial and federal laws, including dangerous driving and criminal negligence, only Quebec, Nova Scotia, and currently Newfoundland and Labrador have legislation banning cellular phone use while driving.

Scope of the Ban

Bill 118 prohibits the use of handheld electronic devices while operating a motor vehicle on a traveled part of a road, regardless of whether the vehicle is in motion at that particular moment. Specifically, the operation of a motor vehicle is prohibited while the screen of a television, computer, or other device is visible to the driver. The prohibition extends to cellular phones, BlackBerrys, texting, hand-held GPS devices, portable video games, and portable audio and video players. The Minister of Transportation may also prohibit further devices by regulation.

The ban does not apply to the use of the above devices in the hands-free mode or the use of a mobile device to contact emergency services.

Other Exemptions

These include screens of GPS navigation devices secured to the dashboard, handheld communication and similar prescribed devices, commercially-used logistical transportation tracking systems, collision avoidance systems and instruments, gauges and systems providing information regarding the status of systems of the motor vehicle are exempted from the prohibition. Drivers of ambulances, fire department vehicles and police department vehicles are also exempted.

Use of mobile devices while the motor vehicle is off the travelled part of the road, not in motion and not impeding traffic is exempted. The Minister of Transportation may provide for further exemptions by regulation.

Penalties

The Bill does not set out provisions for penalties and demerit points for a breach of the new amendments as do some other jurisdictions, which means that existing penalties and offences will apply as appropriate to the new requirements, including fines, demerits points, and a possible license suspension.

Consequences for Employers

Employers that allow their employees to use electronic devises while driving in the course of their employment face serious potential risk under the ammended legislation. For example, if an employee has an accident while speaking on his or her mobile phone with a client, the employer can be held vicariously liable. Although there appear to be no Canadian cases directly on point, many such cases exist in the United States where employers have been held vicariously liable for the actions of their employees.

Employers should implement a policy that is consistent with the Bill 118 amendments. It may be best to ban the use of electronic devices altogether while on company time, or in the alternative, if electronic communication is an important and necessary part of the job, then employers should ensure that their employees use hands-free devices. It will also be prudent for employers to provide training to their employees on the safe use of handheld electronics while operating a motor vehicle.