March 01, 2010

About the Author

  • Robin Kersey

    Robin is Co-Chair of the firm’s Labour & Employment Practice Group and a member of the firm’s Management Committee.

    rmk@tdslaw.com
    (204) 934-2501

  • Andrea R. Doyle

    Andrea is engaged in a broad practice that includes bankruptcy and insolvency law, civil litigation and corporate commercial law.

    ard@tdslaw.com
    (204) 934-2418

A Dangerous Combination?
In June, 2009, the Government of Manitoba passed an amendment to The Highway Traffic Act which prohibits drivers from using any hand-operated electronic devices (including cell phones and Blackberries) while driving a motor vehicle in Manitoba. This amendment is expected to take effect in mid-2010.
 
A driver who contravenes this legislation will be liable to pay a fine. If the offence occurs during the course of employment, the driver remains solely responsible to pay the fine.
 

Are there exceptions to this legislation?

There are a number of exceptions to this ban. These exceptions include where:
  •        Before using the electronic device by hand, a person safely drives the motor vehicle off the roadway and keeps the vehicle stationary while using the device;
  •        A person equips a device such as a cell phone or BlackBerry to allow hands-free use and uses the device in a hands-free manner;
  •        A person uses the hand-operated electronic device to call or send a message to a police force, fire department or ambulance service about an emergency; and
  •        A police officer, firefighter and ambulance operator uses a hand-operated electronic device in carrying out his/her duties.
 

Why was the legislation introduced?

The Province of Manitoba has provided information regarding the risks of driving while using a hand-operated electronic device through its public awareness campaign. This information includes:
 
  •         Drivers who talk on cell phones are 4 times more likely to get into a collision; and
  •         Drivers who text while driving are 23 times more likely to get into a collision.

Have other provinces introduced similar legislation?

Seven other provinces – British Columbia, Saskatchewan, Ontario, Quebec, Nova Scotia, Prince Edward Island and Newfoundland and Labrador – have introduced legislation prohibiting the use of hand-operated electronic devices while driving. This legislation is currently in force in all of those provinces.
 

When does the legislation come into effect?

The Manitoba legislation is not yet in effect. It is anticipated that this legislation will become effective in mid-2010, but no date has been announced.
 

Should employers be concerned?

The Manitoba legislation does not expose an employer to additional obligations or to the payment of a fine in the event of an offence; however, the legislation banning the use of hand-operated electronic devices should cause many employers to consider a related issue – Is an employer liable for the damages that are caused in an accident by an employee who is driving while using a hand-operated electronic device?
 
The potential liability depends on the location of the accident.
 

In Manitoba:

If an employee using a hand-operated electronic device is involved in a motor vehicle accident in Manitoba, the employer will not be directly or vicariously responsible for paying for the damages. The Manitoba Public Insurance Corporation Act bars any action from being commenced with respect to injuries which are suffered in a motor vehicle accident in Manitoba.
 

In other Canadian provinces:

An employer should be very concerned about the possibility of an accident occurring in a Canadian province where damages are assessed on the basis of the tort of negligence. If the employer provided the hand-operated electronic device to the employee, the employer may be directly liable for the damages caused to the accident victim(s). If the accident occurred while the employee was using a hand-operated electronic device in the course of employment, an employer may be vicariously liable for the damages caused by the negligent employee.
 

In the United States:

If an employer has any employees driving in the course of employment in the United States, the employer should be very concerned and should be fully aware of the significant damage awards that have been made in cases involving drivers who were using a hand-operated electronic device at the time of an accident.
 
The following cases are illustrative:
 
  • An Arkansas lumber company paid a settlement of $16.2 million where a motor vehicle – pedestrian accident occurred in Florida that disabled a 78 year old woman. At the time of the accident, a salesman was making a sales call while driving;
  • In Georgia, a construction company agreed to pay $4.75 million of a $5 million settlement when its employee had been pressing *99 to retrieve a message on his cell phone at the time of the accident;
  • In Hawaii, the State paid $1.5 million to a man who had been injured by a State employee who had been driving and talking on her cell phone moments before the accident; and
  • In Pennsylvania, an investment firm paid a $500,000 settlement where one of its stock brokers killed a 24 year old motorcyclist while driving and talking on his cell phone.
 

What can an employer do?

An employer can make efforts to educate its employees in regard to the dangers of using hand-operated electronic devices while driving a motor vehicle and can ensure that employees are aware of the legislation that is being introduced in Manitoba and has already become law in seven other provinces in Canada.
 
It is recommended that an employer establish and enforce a policy with respect to the use by employees of hand-operated electronic devices. The policy should incorporate the following terms:
 
  • A stipulation that an employee in the course of employment will comply with all provincial and state laws with respect to the operation of hand-operated electronic devices while driving;
  • A protocol to be followed by all employees for retrieving and responding to messages; and
  • Disciplinary measures for the purpose of enforcing the policy.
 
By taking initiatives to educate employees and to develop a policy in regard to the use of hand-operated electronic devices while driving, an employer can limit its potential liability. All employers who have employees operating outside of Manitoba should have such a policy.
 

DISCLAIMER:
This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor client relationship. The views expressed are solely the authors’ and should not be attributed to any other party, including Thompson Dorfman Sweatman LLP (TDS), its affiliate companies or its clients. The authors make no guarantees regarding the accuracy or adequacy of the information contained herein or linked to via this article. The authors are not able to provide free legal advice. If you are seeking advice on specific matters, please contact Keith LaBossiere, CEO & Managing Partner at kdl@tdslaw.com, or 204.934.2587. Please be aware that any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

While care is taken to ensure the accuracy for the purposes stated, before relying upon these articles, you should seek and be guided by legal advice based on your specific circumstances. We would be pleased to provide you with our assistance on any of the issues raised in these articles.