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Bill 118: What You Need to Know
HANDS ON THE WHEEL, NOT THE PHONE
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By: Bettina Burgess
At some point this fall, Ontario will join three other Canadian provinces1 in enacting legislation that will impose stiff penalties on drivers caught with their hands off of the steering wheel and locked around some type of communication device. Employers who employ these drivers face potential liability as well. This bulletin sets out what you need to know, and how you can reduce the risk of liability.
Bill 118, referred to as the Countering Distracted Driving and Promoting Green Transportation Act, 2009, (the "Act") received Royal Assent in April of this year, and is expected to be proclaimed in force this fall. If you have employees who use any type of electronic device which requires the use of their hands to operate it and they are expected to drive a vehicle in the course of their duties, you should take steps to prepare for the introduction of the new law.
Prohibited Devices and Uses under the Act
Drivers may not drive while holding any of the following devices:
Wireless communication device which receives or transmits telephone communications, electronic data, mail or text messages
Electronic entertainment device
Any device with a display screen visible to the driver, such as a television or computer
Exempted Devices and Uses under the Act
Drivers will continue to be permitted to use the following devices while driving:
Global positioning system navigation devices used to provide navigation information
Commercially-used logistical transportation tracking systems used to track vehicle location, driver status, or the delivery of packages or other goods
Collision avoidance systems and instruments
Gauges and systems providing information regarding the status of systems of the motor vehicle
Wireless communication or electronic entertainment device in hands-free mode
Emergency use of wireless communication devices, i.e. to call 911
Drivers may also use any of the prohibited devices while the vehicle is stopped, off the travelled part of the road and not impeding traffic. Using a hand-held device while at a stop light will no longer be permitted.
Statutory Penalties
The penalties which may be imposed are those already prescribed by the Highway Traffic Act, (the "HTA"). Under the HTA, a person may face a fine of $60 minimum and $500 maximum under the general penalty provisions; however, anyone convicted of careless driving under the HTA, which may be found in cases where serious property damage or bodily injury or death occurs, faces a fine of between $200 and $1,000,2 6 demerit points, imprisonment for up to 6 months, and licence suspension for up to 2 years. There may also be liability under the Occupational Health and Safety Act where employers are found to have created or permitted an unsafe working condition either by requiring or condoning the use of electronic communication devices by employees while driving.
Common Law Penalties
Employer exposure also comes in the form of vicarious liability at common law which could result in an employer paying significant damages for the negligence of its employees. There are no Canadian cases as of yet where an employer has been held liable for damages caused by an employee who has caused an accident while driving and using a hand-held device simultaneously. However, the law is clear that employers can be held vicariously liable for damages caused by their employees. There is no reason that this type of activity will be treated any differently. We have already seen cases in the United States where employers have been sued by victims of accidents caused by employees driving while on the phone or texting.3
What All Ontario Employers Should be Doing to Avoid Liability
Employers should begin now to review the type of equipment used by employees while driving in the course of their duties. Employees should be required to use or be supplied with hands-free equipment and accessories.
Concurrently, employers should revise their policies regarding vehicle and electronic device use. At minimum, policies should conform with the Act. Ideally, policies should set out clearly what activities are prohibited, and what the legal and employment-related ramifications are for engaging in the prohibited activities. The policies should state that if violated, the employee will face disciplinary action up to and including immediate termination of employment for cause.
Employers must also walk the walk, and not just talk the talk. In other words, employers cannot simply put in writing that employees may not use hand-held communication devices while driving, and still expect them to respond to e-mail immediately or make numerous calls while driving during employment. Expectations may have to be revisited. If calls have to be made, voice-activated dialling and other hands-free technology should be used. The defence of due diligence will be shattered if it can be established that employer expectations and equipment necessarily required the employee to violate the law and the company policies.
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Last edited by Moral Hazard on Apr-26-2011 at 07:48
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