On April 23, 2009, the Ontario Legislature passed into law the Countering Distracted Driving and Promoting Green Transportation Act, (the "Cell Phone Act"), which amends the Highway Traffic Act to prohibit the use of certain display and handheld communication and entertainment devices while operating a motor vehicle, particularly those that are capable of receiving or transmitting telephone communications, electronic data, mail or text messages. Prohibited devices would include cell phones, BlackBerry® and Ipod® devices, MP3 players and some other handheld communication and entertainment devices known more commonly as PDAs.
These new provisions will take effect on October 26, 2009. Although the new legislation provides for a transition period before it is fully implemented and penalties are levied, employers should not wait to introduce the policies and new equipment necessary to address the legislative restrictions, given the clear dangers of using such PDAs while driving.
The Cell Phone Act prohibits driving a motor vehicle if the display screen of a television, computer, cell phone, PDA® or similar device is visible to the driver. Certain display devices will be permissible, including: a navigation device display (such as a GPS) or a logistical transportation tracking system that is used for commercial purposes to track vehicle location, driver status or the delivery of packages or other goods. Other devices are also permitted, provided the device is fixed to the vehicle and its display is limited to information on the immediate environment of the vehicle, road or weather conditions, or is an ignition interlock device. The vehicle's own audio system is exempt, provided it displays only text or static images. Handheld devices that are built-in or integrated with the vehicle's audio system controls are also permitted.
Generally, only particular employees/contractors will be exempt under the Cell Phone Act when using certain types of equipment while performing their work. These exempt employees are limited to those performing work under the City of Toronto Act, 2006, the Municipal Act, 2001, the Public Utilities Act or the Electricity Act, 1998. Mobile data terminal display screens that allow only for "communication with a dispatcher or control centre" will also be allowed on courier vehicles, tow trucks, roadside service vehicles, and licensed limousines and taxicabs. Employees and contractors of a road authority will also be permitted to utilize dispatch communications while engaged in road patrol, maintenance, repair or construction activities. Operators of commercial motor vehicles under the Highway Traffic Act will also be permitted to use such dispatch equipment.
For all other drivers and all other vehicles, the Cell Phone Act will prohibit the use of a handheld wireless communication device or PDA while operating a motor vehicle (although the use of wireless handheld communications is permitted for the purpose of contacting emergency services).
The ability to perform work "on the road" will require employees to cease operating a moving vehicle unless the employee utilizes technology that permits virtually complete hands-free operation. The legislation permits the use of such wireless devices and PDAs when the vehicle is: (i) off the roadway or lawfully parked; (ii) not in motion; and (iii) not impeding traffic. The legislation will only allow a driver to use these devices when the vehicle is in motion and the device can be operated hands-free by pressing a single button to make, answer or end a call or function. Voice communication to engage the device will also be permitted; however, pressing more than one button to utilize the PDA is prohibited.
Regardless of the hands-free capability of the cell phone or PDA, use will only be permitted when the vehicle is moving if the device is securely located and mounted on the vehicle such that it does not move while the vehicle is in motion and can be reached and seen quickly without requiring the driver to adjust his or her driving position. Drivers will, however, be permitted to press a button on a device worn on the head, over the ear or attached to clothing and linked to a handheld communication device to make, answer or end a call or to engage voice control command of the cell phone or PDA.
For most commercial motor vehicle drivers under the Highway Traffic Act, the legislation allows three years to eliminate two-way radios (such as CBs) that may currently be in use. This grace period is intended to give companies time to introduce hands-free technology for their employees and vehicles. For employees operating their own vehicles or for anyone utilizing cell phones and PDAs, the restrictions will be in place on October 26, 2009, although police will not issue tickets for violations until February 1, 2010. After that date, persons found to be in violation of the law will face penalties of up to $500.
What Should Employers Do
Regardless of the transition period, employers should address the use of cell phones and PDAs by employees when performing work for the company. The statistical data available, which supported introduction of the new legislation, was that the use of cell phones and PDAs while driving significantly increased accidents and personal injury. Employers without policies on the use of cell phones and PDAs while on the road should introduce policies that comply with the legislation. Those employers that have policies should review them to ensure that no amendment is necessary. All employers should advise employees of the new legislative restrictions and their obligation to comply both with the legislation and company policy. Finally, employers should review the technology they currently have in place and introduce the necessary hands-free options and equipment permitted by the legislation. This should be done as soon as possible, regardless of the transition period, given the key safety concerns that the legislation is intended to address.
About Ogilvy Renault
Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers and patent and trade-mark agents practicing in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. Find out more at www.ogilvyrenault.com.
Voted best law firm in Canada two years in a row.
2008 and 2009 International Legal Alliance Summit & Awards.
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.