A recent decision of the Ontario Court of Justice indicates that
courts are clamping down on drivers accused of using mobile devices
Justice of the Peace Dechert noted that other drivers
– who have apparently opted not to testify but simply to
argue that the prosecutor has not proven the charge –
have argued that they could have been holding a toy, a flashlight
or garage door opener that looks like a cell phone but is not.
J.P. Dechert quoted Madam Justice Ready's statement, in the
case of R. v. Gill,  O.J. No. 2511 (Ont. C.J.) that,
"Mere suggestions as they were put to the justice of the
peace, without something more concrete, with an air of reality [to]
them, cannot lead to reasonable doubt."
In the case before J.P. Dechert, a police officer testified that
he saw the driver holding what appeared to be a cell phone to his
left ear as the driver's lips were moving, and there was a
black cord running from the device down to the dash area.
The driver argued that because the police officer made no
notation that he had confirmed that the device was a cell phone and
had no recollection of seeing the device up close, the prosecutor
had not proven that the device was indeed a cell phone, so the
charge should be dismissed.
Justice of the Peace Dechert decided that he could draw a
"reasonable inference" that the device was a cell phone,
given that the officer saw a black device being held to the
driver's left ear and observed the driver's lips moving,
that there was a black cable running from the device to the dash,
and that there was no other person in the vehicle to whom the
driver could have been speaking.
Employers should take note of the court's rejection of
drivers' arguments in these mobile device cases, and should
consider, as part of their occupational health and safety program,
including a clear requirement that employees not use handheld
mobile devices while driving on company business.
FMC is one of Canada's leading business and litigation law
firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
providing outstanding service and value to our clients, and we
strive to excel as a workplace of choice for our people. Regardless
of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
our clients' needs. Visit:
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Back in July 2012, we covered "PVYW v Comcare" (No 2),  FCA 395, which concerned an employee in the HR department of an Australian government agency who was injured on a work-related trip to a country town in New South Wales.
The employee, Ashworth, alleged that the manager demanded that she close the door and then positioned herself in front of the closed door and started screaming and pointing her finger in the employee’s face.
A discussion on the judicial decision in a recent case, where a BC employer has successfully defended a claim for constructive dismissal despite taking away supervisory duties and moving the employee from an office to a cubicle.