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Amendments to the Highway Traffic Act Create Potential Liability for Employers

These days, it seems that just about everyone relies on a cell phone or PDA to keep them connected. However, with the recent passing of Bill 118 (the Countering Distracted Driving and Promoting Green Transportation Act, 2009), that connection is going to have to be hands-free while driving. This law came into force on October 26, 2009, but with the three-month grace period the Ontario government has provided by not issuing tickets until February 1, 2010, now is the perfect time to examine your obligations as an employer, establish policies where necessary, and to generally educate yourself and your employees with respect to the new “rules of the road”.

What are the new rules and to whom do they apply?

In limited circumstances, namely situations specific to police and other emergency workers and/or some commercial trucking operations, the new legislation does not apply. However, for the rest of the driving population, changes to section 78 and the addition of new section 78.1 of Ontario’s Highway Traffic Act mean the following:

• drivers are prohibited from 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;

• drivers are prohibited from holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle; and

• no person shall drive a motor vehicle on a highway if the display screen of a television, computer or other device in the motor vehicle is visible to the driver.

There are some exceptions to the strict application of the above restrictions. In addition to being able to use a handheld device in hands-free mode, or when lawfully parked or pulled off to the side of the road, everyday drivers will still be allowed to use the following limited-purpose display screens:

• GPS navigation devices;

• collision-avoidance systems (as long as it is a dedicated system); and

• vehicle system monitors and gauges.

Aside from Wanting Your Employees to be Safe, Healthy and Happy, Why Should Employers Care About These New Rules?

Although the fines for convictions under the Highway Traffic Act range only from $60 to $500, or at worst $500 and/or 6 months in jail for a careless driving offence, the possibility that employers may face additional liability “down the road” cannot be ignored.  If the employee is using his or her handheld device for the purpose of completing his or her specific employment duties, or in furtherance of work done for the employer, an arguable link may be established between the employee’s actions and the employer’s directions, and therefore the employer’s liability for those actions.  Some examples of the way this dangerous linkage  could manifest itself range from  claims for  reimbursements of tickets, to claims from employees for injuries sustained in a motor vehicle accident (civil or Workplace Safety and Insurance-related), to vicarious liability for damages/injuries caused by an employee to a third party.  While none of these scenarios have yet been tested in Canada, the new legislation will invite some to attempt to push the boundaries of employer liability.

In That Case, What Can Employers Do to Protect Themselves from an Unknown Potential Exposure?

Employers must establish their due diligence by creating and enforcing policies that reflect the compliance obligations placed on drivers by the amendments to the Highway Traffic Act. This means formulating a clear statement prohibiting use while operating a vehicle during working hours; setting expectations regarding when and how handheld devices can be used while conducting work responsibilities; and establishing consequences in the employment context for breach of those expectations. This is especially so where the handheld device is provided or subsidized by the employer. While employers may face some resistance, especially to any discipline that arises under a new workplace policy, communicating to employees the need for safety and compliance with the law is key to reducing exposures to liability resulting from employee violations of the new law.

Should you have any questions regarding the above, or wish to learn more about developing an effective policy for your workplace, please don’t hesitate to contact us.

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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