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Date:
2012.08.16

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THE EMPLOYERS' EDGE

Getting Hung-Up on driving with Hand-Held Mobile Devices - Recent Court decision sheds light on when an offence is committed

On June 20, 2012 the Ontario Court of Justice rendered a decision that now defines what constitutes an offence under section 78.1 of Ontario’s Highway Traffic Act.  In 2009 the Highway Traffic Act was amended to include section 78.1 which provides in part:

78.1  (1)  No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 2009, c. 4, s. 2.

The intent of the legislation is clear enough – to deter drivers from being distracted by handheld devices in an effort to make Ontario’s roads safer – but the interpretation of the actual offense has been ambiguous.  This issue came to a head in the recent case of R. v. Kazemi, (2012 ONCJ 383) when a police officer observed Khojasteh Kazemi handling her cellular phone in her car.  Ms. Kazemi stated that her phone dropped to the floor while she was driving, and after pulling off the highway and stopping at a red light, she took the opportunity to retrieve her phone and put it back on the passenger seat.  The police did not take steps to determine whether the cell phone was in use at the time Mr. Kazemi was observed holding the device.  There was no question, however, that at some point she was “holding” a hand-held wireless communication device. The Crown prosecutor argued that was all the legislation required for a conviction, since for a Provincial offense to be made out, there is no requirement that the accused possess a guilty mind.  In order to violate the legislation, it is sufficient that the person has committed a prohibited act.

The Justice of the Peace agreed that “holding” her cell phone was illegal, and stated that Ms. Kazemi committed the offence.  Accordingly, she was convicted and fined $200.

Ms. Kazemi appealed to the Ontario Court of Justice which determined that it needed to interpret the legislative provision prohibiting “holding or using a hand-held wireless communication device or other prescribed device” as in section 78.1(1) of the Act.  The Court agreed that holding one’s cell phone while driving is illegal per se, and that there is no need to establish any intent to use the phone.  However, given the purpose of the legislation, the Court refused to interpret any handling of a phone whatsoever as an illegal act.

The Court disagreed that it is illegal to merely touch a phone and stated that “cell phones are not inherently dangerous or noxious products.”  The Court therefore interpreted the legislation in the following manner:

Given the objective is to promote road safety by banning resort to and the use of such devices while operating a motor vehicle, it is not necessary to prohibit a driver from merely touching a cell phone, for example, just to hand it to a passenger or to move it within the car. The short mental distraction and physical interference with the ability to drive caused by such acts are not intended to be caught by the provision. There must be some sustained physical holding of the device in order to meet the definition found within ss. 78.1(1).

The Court therefore allowed the appeal and overturned the conviction.

Since the introduction of Ontario’s cell-phone driving prohibition in 2009, employers have been well-advised to draft policies requiring employees to refrain from using their hand-held phones while driving.  The reason for such advice is that an employer could be held liable if an employee is at fault in a car accident caused by being distracted by using their hand-held phone in the normal course of employment.

Vicarious liability is the principle that an employer can be liable for the wrongful or negligent act of its employee where the employee is acting within the course and scope of his or her employment at the time the wrongful or negligent conduct occurs.  The Supreme Court of Canada has taken a broad view of what it means for an employee to be acting in the course of employment, and accordingly, even though it is the employee committing an unauthorized or illegal act, without proper governance, an employer can still be held legally responsible in order to provide a just and practical remedy and to deter future harm.

There are practical reasons why employers will want to be aware of this decision.  First, employers can now draft policies concerning cell phone use while driving with a better understanding of the kind of conduct that the Courts have determined are unacceptable, that which was not intended to be caught by the purposes of the Highway Traffic Act.  Second, in the unfortunate event that an employee is caught allegedly violating section 78.1 of the Highway Traffic Act, employers will have an established defence to their potential vicarious liability.

The lawyers of Crawford Chondon & Partners LLP have experience drafting all manners of employment policies in compliance with legislation and employers’ obligations and responsibilities.  If you are looking for assistance in drafting your own employee policies, you can rely on the lawyers at CCP.

?Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

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