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The Ontario Court of Appeal has recently ruled on the issue of distracted driving caused by “holding” handheld devices in two companion decisions: R. v. Kazemi 2013 ONCA 585 and R. v. Pizzurro, 2013 ONCA 584. In both cases, the Court of Appeal has strictly interpreted the Ontario Highway Traffic Act (“HTA”) to mean that holding a handheld device while driving constitutes a breach of the statute because it results in distracted driving that should be avoided at all costs.

Both cases involved section 78.1 of the HTA which provides:

No person shall drive a motor vehicle on a highway while holding or using a hand-held wirless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or test messages.

In Kazemi, the individual alleged that when she stopped at a red light, her cellphone fell on the ground and she had bent over to pick it up and she only had it in her hand briefly. However, when she picked it up is when she was observed by the police officer with the phone in her hand. The central issue was whether the individual was “holding” her cellphone in contravention of section 78.1 of the HTA. The Court of Appeal held that the mere holding of a phone, even if for a few seconds, would violate section 78 of the HTA. The Court of Appeal held that, “Road safety is best ensured by a complete prohibition on having a cellphone in one’s hand at all while driving”.

In Pizzurro, the individual was observed by the police driving with a cellphone in one hand and he was either reading or typing into it. The issue on appeal was whether the Crown had proved that the individual was using a phone that was capable of receiving or transmitting telephone communications, electronic data, mail or text messages and whether the Crown had to prove this burden. The Court of Appeal held that the Police and Crown did not have to prove that a handheld device was capable of transmitting or receiving data. Rather, as in Kazemi, all that was required was the handheld device to be in the individual’s hand to violate section 78 of the HTA.

These two decisions raise a host of issues for employers who either communicate with their employees or their employees communicate with their customers via handheld devices to consider:

• Employers should consider zero tolerance policies on using handheld devices while vehicles are in use.
• Employers should have policies in place that comply with the current law on handheld devices and employers should ensure that they revisit these policies on a routine basis to make sure they are in compliance with recent developments.
• Section 78.1(3) carves out an exception for “hands free devices”. Therefore, employers must ensure that if employees are going to use their devices for work purposes while driving, they use them hands free. Employers may want to consider taking the extra step to ensure that their employees’ vehicles are equipped with hands free technology that complies with the legislation.
• Employers should provide training and secure written proof that Employee’s know and understand their obligations under the HTA.

It does not seem that unreasonable to envision a circumstance where an employer may be held to be vicarious liable or in breach of its duties under the Ontario Occupational Health and Safety Act if an employee causes an accident because he/she was using a handheld device while driving. Therefore, establishing proper policies and offering training may be necessary to establish an appropriate due diligence defence in case of charges.

Simon Heath LL.B, M.I.R.
Heath Law
Employment Lawyers