Amendments to the Highway Traffic Act ("the
Act") that ban the use of cellular phones and other
electronic devices while operating a motor vehicle came into effect
on October 26th, 2009. Below is a summary of the amendments, and
methods by which employers can prepare their workplaces for
compliance with the new legislation.
Bill 118, which received Royal Assent in April 2009, amends the
Act to make it an offence to drive a motor vehicle while
holding or using a hand-held wireless communication device (e.g., a
cell phone) or an electronic entertainment device (e.g., an mp3
player), or while a display screen (e.g., of a television or a
computer) is visible to the driver.
There are many exceptions to this general prohibition. The
screen of a global positioning system (GPS), a collision avoidance
system, a commercially-used transportation tracking system, or a
system that provides information regarding the status of systems in
the motor vehicle may be visible to the driver without contravening
the ban. The use of electronic communication devices in hands-free
mode is also allowed, as is the use of an electronic device when
the motor vehicle is off the road, not in motion, and not impeding
traffic. Finally, the use of a hand-held device to contact
emergency services, and the use of hand-held devices by the driver
of an ambulance, fire truck or police vehicle, is permitted.
Drivers who operate a motor vehicle while using a hand-held
device in contravention of the ban will be subject to a fine of $60
to $500. If the driver's violation results in a careless
driving conviction, the driver may have his or her licence
suspended and receive up to six demerit points, a fine of $200 to
$1,000, and/or six months' imprisonment.
Although the Ontario Government has stated that the ban will not
be enforced until February 1st, 2010, employers should require its
employees to comply with these amendments immediately.
The Impact of the Ban on Employers
The cell phone ban is of concern to employers whose employees
use electronic devices in the course of their employment (e.g.,
cell phones to take calls from clients), and whose employees drive
motor vehicles as part of their job duties.
If an employee commits an offence under the Act, the
fine imposed will be levied against the employee, and not
vicariously against the employer, even if the employee was
performing job duties at the time of the offence. However, an
employer may be found civilly liable for damages arising from a
motor vehicle accident caused by an employee's use of a
hand-held device while driving. The likelihood of a finding of
vicarious liability against an employer is greater if a hand-held
device was being used by an employee for a work-related purpose at
the time of the accident, or if the employee was driving the motor
vehicle as part of his or her work-related duties. If the employer
owns or provides the hand-held device, or if the employee was
driving a company vehicle at the time of the accident, direct
liability may result.
In order to limit potential civil liability and to ensure
compliance with the duty under the Occupational Health and
Safety Act to take every reasonable precaution to protect
employees, employers should consider taking the following
create a workplace policy on the use of electronic devices that
states that a failure to comply with the Act while in the course of
employment will not be tolerated, and that breaches of the
electronic devices policy may result in discipline, up to and
educate and train employees regarding the cell phone ban and
your workplace policy; and
if it is necessary that your employees use electronic devices
while driving, provide them with hands-free devices and any related
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.
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