Distracted driving in Ontario is now the most common cause of accidents on the road, including fatalities.

Increasingly you notice the vehicle ahead of you does not promptly move forward on the green light (because a mobile device is being used). Alternatively, you  regularly see the driver beside you using a cell phone while stopped at a red light or during very aggravating stop-and-go gridlock on the 401. You likely also see drivers still talking or texting on their phone while actually driving.

Even holding your mobile device while operating a motor vehicle is a criminal office in Ontario. Yes, that includes while stopped in frustrating traffic and while waiting for the traffic light to turn green.

In Ontario, “[n]o 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.

Of course, there has been litigation about the scope and meaning of this, including what it means to be holding your mobile device in your vehicle.

Effectively, Ontario Courts have strongly affirmed a total prohibition against even holding your device in your vehicle if you are operating your vehicle at the time for any purpose.

Case in Point:

R. v. Kazemi, a 2013 criminal case decided by the Court of Appeal. It was asked to consider what it means to hold or use a handheld device in the context of operating a vehicle.

A police officer noticed a driver with her mobile device in her hand while stopped at a red light. When she was pulled over, the driver told the police officer that her cell phone had been on the seat of her car, but that it had previously dropped to the floor when she braked for the traffic light.

The driver claimed that when the officer saw her with the cell phone in her hand, she had only been picking it up from the floor while safely stopped at a red light.

She was charged with distracted driving.

The Court had to decide whether her actions constituted a holding or using of a hand-held wireless communication device.

Ultimately, after several lower Courts decisions, the Court of Appeal convicted the driver for distracted driving, holding that the driver’s actions did constitute the holding of a cell phone.

Specifically, the Court of Appeal held: “[r]oad safety is best ensured by a complete prohibition on having a cell phone in one’s hand at all while driving. A complete prohibition also best focuses a driver’s undivided attention on driving.”

Employers Take Note:

This has implications for employers in Ontario, too. Health and safety legislation in Ontario, such as the Occupational Health and Safety Act, requires employers to protect the health and safety of workers in their workplaces. A ‘workplace’ includes a vehicle used for work purposes.

Therefore, employers need to take steps that their employees do not use or hold mobile devices in the course of employment while operating a vehicle.

Employers should have a policy governing the permitted use of hand held devices and give limitations or prohibitions on that use, particularly when driving, along with a statement that disciplinary action will be taken for violations of the policy. Employers should also make sure that employees are properly trained on the policy and reminded of it on a regular basis, like any other workplace policy.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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