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Prepare for cellphone ban, lawyers tell businesses

|Written By Robert Todd

Employment law practitioners are urging companies to introduce strict guidelines on using cellphones while driving as the province prepares to roll out restrictions on doing so later this month.

Tierney Read Grieve says the new law will ‘impact even office workers who you wouldn’t normally think need to rely on it.’

Tierney Read Grieve, an associate at Hicks Morley Hamilton Stewart Storie LLP, says the firm has received an influx of calls from clients wondering about the impact of the new law and how best to avoid liability issues.

Companies with mobile sales teams or transportation units are most concerned about the fallout, she says. But Blackberrys and cellphones are ubiquitous, she notes, so employers in all industries are seeking a plan.

“[The law] is actually going to impact even office workers who you wouldn’t normally think need to rely on it - everybody relies on it,” she says. “Client expectations and work expectations have really all changed because of these devices. So it’s hard to imagine a workplace that isn’t affected in some way.”

The law is also sure to have a significant impact on the lives of many lawyers, says John West, a senior partner at Ogilvy Renault LLP.

“We have the same problems that a lot of other businesses have. Law firms are typically composed of Type A personalities who are very aggressive and driven and want to put as much into a business day as possible.”

The comments come as the Ministry of Transportation last week announced the ban on talking on hand-held devices while driving - included in Bill 118, the Countering Distracted Driving and Promoting Green Transportation Act - will take effect on Oct. 26.

The new law makes it illegal for drivers to talk, text, type, dial, or e-mail using cellphones and similar devices. An initial three-month education period will end Feb. 1, 2010, when police will begin issuing tickets to offenders.

Those caught breaking the law face fines of up to $500. Exceptions to the law have been made

for police, paramedics, firefighters, and drivers dialing 911.

Read Grieve says any employer who issues a mobile device to workers or who has employees who drive a vehicle for their job - whether it’s a personal vehicle or company car - should consider the implications of the new law.

The question most employers are pondering, says Read Grieve, is how to help employees safely do their job in a way that complies with the law.

But those queries can’t fully be answered until regulations accompanying the law are put in place, she says.

“We expect there to be regulations because the legislation itself doesn’t really clarify or address the issues that snowplow operators will face, for instance,” says Read Grieve.

“So there’s a lot of room there for them to help us understand and help us advise our clients about how they can help their employees do their own jobs.”

Lawyers need to know exactly which devices will be permitted and how to use them to properly advise clients. For example, in the trucking industry, courtesy dictates that drivers notify other drivers via radio if road conditions are hazardous, says Read Grieve.

“There’s all kinds of situations where mobile devices that are not a BlackBerry or not a cellphone get used.”

Hicks Morley is encouraging clients to take a proactive approach to the law, says Read Grieve.

Employers should sit down and think about which employees use these devices in their jobs and re-examine existing policies on their use, she says.

Once that has happened, it’s time to communicate the new policies to employees and make sure they fully understand them, says Read Grieve.

There is room to maneuver, she notes. Some companies will opt to fully ban the use of hand-held devices while on the job, while others will take a lighter approach and permit employees to use hands-free technology such as Bluetooth.

West says similar legislation has generally proved effective in other jurisdictions, but enforcement is a challenge.

“I suspect that most police forces probably don’t go out of their way to catch people who are operating cellphones and driving, but if they see it, they’ll deal with it,” he says. “Someone who is by the side of them while they’re driving may not be readily visible to a police officer driving by in a car, so concealment is an issue.”

West speculates, however, that people found to have been using a hand-held

device at the time of a collision could face harsher punishments.

“I think judges will pay close attention to the fact, and the courts will likely pay attention to the fact, that what the person was doing was unlawful to begin with, and clearly unlawful, and an accident resulted,” he says.

Ross Wells, a partner at Gowling Lafleur Henderson LLP’s Waterloo office, expects hands-free technology to help overcome some of the productivity losses caused by the law. But he says it’s vital for employers to take a stand on the issue.

“We are advising them to not ignore it and not simply expect that employees will adjust to the restrictions of the law,” he says. “We think that they should have a policy in place and require a policy that mirrors what the law says.”

West, meanwhile, says Ogilvy has made it clear to lawyers that certain use of hand-held devices while driving is unacceptable.

“I think our feeling has been that we expect people in our firm to comply with the law,” he says.

Drivers using cellphones are four times more likely to crash, according to studies.

It’s believed that sending text messages while driving is even more dangerous. Transport Canada says driver distraction is a factor in about 20 per cent of all collisions.

When the law takes hold, Ontario will be among 50 countries and several other Canadian provinces to enforce rules against driving while on the phone.

  • Product Writer, Carswell

    Andrew Treash
    There actually is a regulation that answers some of the questions about exceptions for people perforaming various jobs, and more specifics about what kinds of devices will be allowed. See Ontario Regulation 366/09.
  • Ban on driving and using cell

    carol donohoe
    See attached proposed law. Get ready and get bluetooth.
  • CEO

    Michael Riemer
    The business liability associated with distracted driving is a real problem and one that enterprises need to do address. ZoomSafer is a solution being developed through Toront-based Five Mobile is an application that individuals and businesses can download to their mobile phones at http://www.zoomsafer.com. The solution activates automatically using the GPS on the phone and keeps drivers focused on the road and not their phones but still connected with friends, family and co-workers. ZoomSafer is in the business of helping motorists and enterprises make better decisions while driving, reducing accidents, saving lives, and saving money.
  • Cell phone ban while driving

    Debra
    Is this new law going to include using your cell phone "hands-free" as well?
  • SVP Regulatory, Rogers Communications

    Ken Engelhart
    Your statement: "The new law makes it illegal for drivers to talk, text, type, dial, or e-mail using cellphones and similar devices." is incorrect. It is legal to use the devices in handsfree mode.
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