Law Times

PAGE 4 NEWS OctOber 5/12, 2009 • Law times Prepare for cellphone ban, lawyers tell businesses BY ROBERT TODD Law Times mployment 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, an associate at E 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 Blackber- rys 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 — ev- erybody 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 signifi- cant impact on the lives of many lawyers, says John West, a senior partner at Ogil- vy Renault LLP. "We have the same problems that a lot of other businesses have. Law firms are typically composed of Type A person- alities 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 — in- cluded in Bill 118, the Countering Distracted Driving and Promot- ing Green Transporta- tion Act — will take effect on Oct. 26. The new law makes it illegal for drivers to talk, text, type, dial, or e-mail us- ing cellphones and simi- lar 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 is- sues 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 an- swered until regulations accompanying the law are put in place, she says. "We expect there to be regulations be- cause 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 Tierney Read Grieve says the new law will 'impact even office workers who you wouldn't nor- mally think need to rely on it.' their employees do their own jobs." Lawyers need to know exactly which devices will be permitted and how to use them to properly ad- vise clients. For example, in the trucking industry, courtesy dictates that drivers notify other driv- ers via radio if road con- ditions are hazardous, says Read Grieve. "There's all kinds of situations where mo- bile devices that are not a BlackBerry or not a cellphone get used." Hicks Morley is en- couraging clients to take a proactive ap- proach 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 pol- icies on their use, she says. Once that has happened, it's time to communicate the new policies to em- ployees and make sure they fully under- stand 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 gen- erally proved effective in other jurisdic- tions, but enforcement is a challenge. "I suspect that most police forces prob- ably 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 atten- tion 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 acci- dent 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. LT Better Results Faster GET THE WESTLAW® CANADA ADVANTAGE INTELLIGENT FINDING TOOLS TOOLS THAT WORK FOR YOU Westlaw® Canada gives you the tools that work as smart as you do. Decades of editorially-created classifications combined with powerful technology ensure you never miss a case on point. 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