Preparing Your Workplace for Ontario’s Cell Phone Ban

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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.

The Ban

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.

The Penalty

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 preventative measures:

  • 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 including termination;
  • 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 training.