An increasing number of studies show that driving while talking on a cellphone can be dangerously distracting. Some studies state that talking on a cellphone while driving makes a person four times more likely to be in a crash. This is a much higher risk than most other distracting activities. As a result, the governments of Saskatchewan, Prince Edward Island and British Columbia have announced that they will draft legislation this fall to ban the use of hand-held electronic devices (such as cellphones) to talk or text while driving a vehicle; joining the provinces of Newfoundland and Labrador, Nova Scotia, Quebec, Ontario and Manitoba, who have banned or are in the process of banning the use of hand-held wireless devices while driving this fall.
However, these statutory bans allow drivers to use hands-free cellphones or wireless devices.
These legislative bans are taking place even though other research has concluded that there is no difference in the level of cognitive distraction between hands-free and hand-held cellphone use: it’s the cellphone conversation that diverts people’s attention from the road. Opponents do not support legislation that allows for driving while using hands-free wireless devices, claiming that there is no scientific evidence that hands-free devices are any safer for drivers.
Some opponents to the above bans argue that cellphone or wireless device bans are simply not enforceable. Others argue that drivers do all sorts of distracting things while driving—like eating, drinking coffee, arguing with kids in the back seat, listening to music, talking to passengers, applying makeup, etc.—so it makes little sense to prohibit one specific activity. Others argue that most provincial Highway Traffic Acts already prohibit careless driving, which should automatically include driving while talking or texting on a cellphone or other wireless devices, thus making these bans unnecessary.
For employees who are on the road, such as sales representatives, the car is often a workplace. While the courts in Canada have yet to deal with employer liability in this specific context, do not be surprised if a court finds the employer liable for an accident caused by driver inattention while talking on a cellphone. Nonetheless, the principle of vicarious liability applies. That means that employers can be found liable for damages caused by the negligent conduct of their employees. An employer should consider promoting safe driving. For more information on the topic of vicarious liability and cellphone use during the course of employment, read the following HRinfodesk article: 30282.
Should all cellphone use (hands-free and hand-held) by drivers be illegal? Are total bans impractical?
(Sept. 14, 2009) A new Angus Reid poll for Sony Ericsson Mobile Communications regarding Ontario’s ban on the use of hand-held cellphones indicates that 92% of respondents will obey the law.
Yosie Saint-Cyr
Employment Law Managing Editor
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