On October 28, 2008, the Ontario government tabled proposed legislation that will ban the use of hand-held devices to talk, email or send text messages while driving. The law would not apply to the use of hands-free devices or using cellphones for 911 calls. Global positioning systems (GPS) will be allowed, as long as they're properly secured to the dashboard.
Also allowed are commercially-used logistical transportation tracking systems, collision avoidance systems and instrument display screens providing information regarding the status of systems of the motor vehicle.
Specifically, the ban would include cellphones (even at a stop lights), dialing, BlackBerrys, texting, hand-held GPS, portable video games, MP3 players and DVD players.
The proposed legislation would not apply to the driver of an ambulance, fire department vehicle or police department vehicle. Use of such devices while the motor vehicle is off the travelled part of the road, not in motion and not impeding traffic is also exempted. The Minister of Transportation may provide for further exemptions by regulation.
Bill 118, Countering Distracted Driving and Promoting Green Transportation Act, 2008 will amend the Highway Traffic Act to prohibit the use of devices with display screens and hand-held communication and entertainment devices and to amend the Public Vehicles Act with respect to car pool vehicles will be enforced by the OPP as soon as the government passes the legislation.
The bill does not include provisions for penalties and demerit points for any violations to the law, unlike in other jurisdictions such as Quebec, Newfoundland and Labrador and Nova Scotia, but drivers who place others at risk by using one of the banned devices can also be charged under existing careless driving laws. They could face fines of up to $1,000, six demerit points, a driver's licence suspension and even jail time under existing legislation.
Transportation Minister Jim Bradley said "What we're trying to avoid is driver distractions, and it's particularly difficult if a person is trying to operate something with his or her hands at the same time as driving."
In addition, the Bill amends the Public Vehicles Act with respect to car pool vehicles.
The definitions of "public vehicle" and "taxicab" in the Act currently exclude a car pool vehicle. These definitions are amended and the definition of "car pool vehicle" is repealed. Section 1 of the Act is amended to state that a public vehicle and a taxicab do not include a motor vehicle described as follows:
- with a seating capacity of 10 or less;
- travelling on a one-way or round trip where the taking of passengers is incidental to the driver's purpose for the trip;
- no fee is charged or paid for passengers' transportation except to reimburse the expenses of operating the motor vehicle;
- the driver does not take passengers on more than one one-way or round trip in a day; and
- the owner or lessee of the motor vehicle does not use more than one vehicle as a car pool vehicle, unless the owner or lessee employs most of the passengers being transported in the vehicles.
Bill 118 can be viewed on the Ontario Legislative Assembly website.
Backgrounder
Contradicting previous statements, the Ontario government announced, on May 26, 2008, that they are considering following other jurisdictions that have banned drivers from using cellphones, requiring them to use a headset or speaker system when talking on cellphones while driving. However, they say they want to go further by banning every electronic device that has the potential to distract drivers, such as GPS devices and text messaging on a BlackBerry.
Previously, the government did not think a ban on the use of hand-held cellphones was of any use, because drivers engage in all kinds of other activities behind the wheel that are just as distracting, including drinking coffee or applying lipstick. They changed their minds following a recent spate of fatal automobile accidents in which drivers were suspected of talking on the phone.
Premier Dalton McGuinty stated: “I've always said I'll do what the police think is important and make our roads safer." Police officials in Ontario have advised him not to zero in on just cellphones but all the other gadgets used by multi-tasking drivers.
Currently, Ontario has a private member's Bill tabled in the legislature proposing a ban on hand-held cellphones except in emergencies. The government has not clarified if they intend to amend this Bill and proceed or to table their own government Bill. Bill 40, Highway Traffic Amendment Act (Cellular Phones), 2008 can be read at www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=1958.
Only Newfoundland and Labrador, Nova Scotia and Quebec have legislation banning cell phone use while driving, however, according to various alerts and studies, a collision or an incidence of bad driving caused by the use of a phone can result in charges under a number of laws, including those related to dangerous driving, careless driving, and criminal negligence causing death or injury.
When you allow employees to use cellphones while driving, and they conduct business at the same time, there is a serious potential risk for employers. The risk being: driver talking on cellphone has an accident - employer is sued.
The legal principle starts with the fact that a driver is at fault for causing an accident, and cellphone use is a factor. If there is any evidence that the call was made while the driver was conducting business or considered at work, or the call was work-related, the driver's employer could be held liable for damages resulting from the accident. Thus far, all of the cases on record where employers have been sued under this principle have taken place in the United States. Although there is no reported Canadian case on record, nonetheless, the principle of vicarious liability applies. This means that employers have been found liable for damages caused by the negligent or wrongful conduct of their employees acting in the course and scope of their duties. Whether the employee was acting in the course of his or her duties at the time of the incident is always a question of fact to be determined in each case.
While the courts in Canada have yet to deal with employer liability in this specific context, do not be surprised if a court finds the employer liable for an accident caused by driver inattention while talking on a cellphone.
Businesses should consider monitoring when and how employees use their cell phones while on the road for business purposes, with the knowledge that they could be liable if an accident occurs-to the point that hand-held cell phone use should be banned altogether. Employers should establish policies regarding the use of cell phones while on company business, outlining safe cell phone practices, and/or providing employees with hands-free devices.