Introduction

Distracted Driving = Distracted Working?

Distracted Driving = Distracted Working?

On January 1, 2019, amendments to Ontario’s distracted driving laws significantly
increased penalties for convicted motorists. Under the new legislative framework,
drivers convicted of distracted driving will mandatorily face license suspension,
minimum fines, and demerit points.

Distracted Driving on Public Motorways

Distracted driving is no longer limited to texting and making phone calls. The Ministry of Transportation has indicated that distracted driving laws apply to the use of any “hand-held communications/entertainment devices and certain display screens”.
While driving (including while motorists are stopped in traffic or at red lights), it is illegal
for drivers to:

  • Use a phone or other hand-held wireless communication device to text
    or dial, with the sole exception being to touch a device to call 911 in the event of an emergency;
  • Use a hand-held electronic entertainment device, such as a tablet or
    portable gaming console;
  • View display screens that are unrelated to driving, such as watching a video;
  • Program a GPS device, except by voice commands.

Motorists are permitted to use hands-free wireless communication devices with an
earpiece, lapel button or Bluetooth. Additionally, the new laws permit motorists to view GPS screens as long as they are either built into the vehicle’s dashboard or securely mounted to the dashboard.

The severity of the punishment in the event of a conviction increases with the number of prior offences committed:

  • First offence: 3 day suspension and $1,000 fine and 3 demerit points
  • Second offence: 7 day suspension and $2,000 fine
  • Three or more offences: 30 day suspension, $3,000 fine and six (6) demerit
    points

Other actions such as eating, drinking, grooming, smoking, reading and reaching for objects are not part of Ontario’s distracted driving law. However, motorists can still be charged with “careless driving“. If convicted of careless driving, a motorist may receive:

  • 6 demerit points;
  • Fines of up to $2,000 and/or
  • A jail term of up to 6 months
  • License suspension of up to 2 years

Motorists who are distracted while operating a vehicle can also be convicted of dangerous driving, facing even heavier penalties including jail terms of up to:

  • 10 years for causing bodily harm to another person;
  • or up to 14 years for causing death.

The Ontario Provincial Police (“OPP”) have announced that they will no longer be letting offending motorists off with a warning if they are caught distracted driving. This means those guilty offenders will be fined, penalized and/or prosecuted.

Distracted driving… under the OHSA?

Ontario’s Occupational Health and Safety Act (“OHSA”) charges employers with taking
“every precaution reasonable in the circumstances” to protect the health and safety of
workers in a workplace. Employers are statutorily mandated to proactively eliminate
hazards (and potential hazards) from the workplace. Workers are statutorily mandated to refrain from “[using] or operating any equipment, machine, device, or thing or work in a manner that may endanger himself, herself or any other worker”. Further, the OHSA gives workers the right to refuse work in circumstances where working conditions are unsafe, and/or may present danger to workers.

As we have discussed in previous articles, the above statutory provisions are construed very broadly, which allows the OHSA to be applied flexibly and proactively to address emerging health and safety concerns before formal legislative changes to the OHSA have been made.

Case in point – there are presently no specific rules under the OHSA which prohibit
distracted driving at the workplace. However, that did not prevent the Ontario Court of
Justice from recently charging two (2) forklift drivers with ‘distracted driving’ under the
OHSA (i.e. “operating equipment… in a manner that may endanger… a worker”).

Distracted driving vs. Distracted working

In Ontario (Ministry of Labour) v Nault, 2018 ONCJ 321 (CanLII) (“Nault”), a worker
at a large bottling facility in Brampton, Ontario observed two (2) of his colleagues, forklift drivers, sitting on their forklifts and looking at their personal cell-phones. The forklift drivers in question were not operating the forklifts at the time – they were at a standstill.

The workplace in question had clear and unequivocal “zero tolerance” rules regarding
the use of cell-phones in or around the employer’s safety-sensitive warehouse and
shipping / receiving areas.

The worker filed a work refusal with management, asserting that the forklift drivers were endangering the workplace by breaching the employer’s zero-tolerance cell phone policies within the warehouse and shipping / receiving areas. Steps were taken by the employer to try and resolve the worker’s safety concerns.

When the problems persisted, the worker filed a formal work refusal under s. 43 of the
OHSA. Once again, management tried to resolve the issue, but the forklift drivers
ignored managerial direction and were once again observed using their phones while
they were sitting in the driver’s seat.

As required by the OHSA, the employer contacted the Ministry of Labour and notified an Inspector about the worker’s escalated work refusal. The Ministry of Labour conducted a thorough investigation, which included:

  • collecting photographic evidence;
  • interviewing witnesses;
  • reviewing forklift operators’ manuals;
  • reviewing employer policies and procedures;
  • reviewing internal dispute resolution documents (previous records of
    discussions between the employer and the defendants, including
    disciplinary measures for similar misconduct), and other relevant factors.

The above materials were then provided to the Crown Prosecutor, and ultimately the
Court.

At trial, both defendants – the forklift drivers – disputed the allegations advanced
against them. Both contended that they had not breached the OHSA because they were not “driving or operating” their forklifts at the time the complainant claimed they were holding or viewing their cell phones. One of the defendants alleged that he was using a code scanner, and not his cell phone, at the time of the report. The other claimed that he was only using his cell phone to check the time, or for “work-related purposes.”

The Crown opposed the defendants on all points. According to the Crown, the fact that
the forklifts in question were stationary and not “driving or operating” was irrelevant. The Crown argued that section 28(2)(b) of the OHSA (“operating equipment… in a manner that may endanger… a worker”) had to be interpreted broadly to include a worker using a cell-phone while standing beside or sitting on a turned-off stationary forklift in a work area where they are in the presence of other workers and other equipment or machines.

Although the Crown could not point to any specific provisions under the OHSA which
spoke to distracted driving, the Crown did make reference to Ontario’s distracted driving laws, including the rules that apply to distracted driving, careless driving and dangerous driving.

When evaluating the evidence, the Court identified that the employer had in place a
valid, clearly communicated “zero tolerance” policy with respect to cell phone use in the workplace. The employer had signs in place which clearly indicated that cell phone use in the relevant areas was prohibited. The Court found that the defendants were aware, or ought to have been aware, that they were not allowed to have cell phones with them in the employer’s warehouse and shipping area.

Further, the employer did not condone the defendants’ behaviour after becoming aware of the policy violations in question. The Court reviewed disciplinary notes issued against the defendants for the same behaviour before the complainant filed an external
complaint with the Ministry of Labour. Despite the employer’s rehabilitative efforts, the
defendants simply chose to ignore managerial direction and workplace rules that were
put in place to maintain their safety, and the safety of their co-workers.

The Court next conducted a detailed review of the relevant rules under the OHSA
(specifically the Regulations applicable to Industrial Establishments), along with the
aforementioned rules under the Ontario Highway Traffic Act. The Court applied the
same legal standard for distracted driving that applies in the context of motoring on
public roadways to the operation of a forklift within an industrial establishment:

Like motorists who unlawfully hold or use cellphones or other mobile
communication devices while operating or driving motor vehicles on
public highways in Ontario, workers that use cellphones or other
mobile communication devices while operating equipment or
machines in factories or warehouses, such as a forklift, would also
pose the same danger to themselves or others, as a consequence
of being distracted to what is going on around them while using
those mobile communication devices.

As noted above, the fact that a motorist is operating a cell phone while driving a vehicle that is at a standstill is no defense against a distracted driving claim under the Ontario Highway Traffic Act. The Court in Nault applied the same standard to the workplace. The Court agreed with the Crown, ruling that it did not matter whether the defendants were “driving or operating” the forklift when they were observed using their cell phones. Both forklift operators were convicted under the OHSA.

Key Takeaways for Employers

Fellow Ontarians, our track record with respect to distracted driving is very poor.
Despite widespread awareness of the dangers caused by distracted driving, fatal
accidents continue to occur on our motorways every day. Ontario’s road safety
regulators have continuously ramped up the penalties and fines associated with even
the slightest violations of the law. It looks as though Ontario’s regulators will continue to increase penalties and enforcement mechanisms until accident rates start to decrease.

Unsurprisingly, Ontario’s distracted driving regulatory mechanism is starting to find its
way into other areas of the law. Nault illustrates the seriousness with which Ontario’s primary health and safety regulators, the Ministry of Labour and the Ontario Court of
Justice, view cell phone use in safety-sensitive workplaces.

The Court’s decision in Nault offers several notable takeaways for employers. First and
foremost, it is worth noting that the employer in Nault was a “model employer” with
respect to managing the circumstances in that case. It stands to reason that things
could have been much worse for that employer if it had, for instance, no policies in
place, no documented evidence, and/or a history of condoning or being willfully blind to the forklift operators’ cell phone use. Conversely, the employer in Nault:

  • Made it clear that cell phone use could potentially endanger workers in
    the workplace;
  • Implemented policies and practices forbidding the use of cell phones in
    safety-sensitive situations;
  • Took steps to act on the complainant’s work refusal immediately;
  • Involved the JHSC in its investigation into the complainant’s work refusal;
  • Was able to point to clear evidence that it had taken steps to internally
    address concerns raised by the complainant before the Ministry of
    Labour arrived.

Employers are reminded of the following additional key takeaways as they prepare their employees and managers to deal with this emerging issue:

  1. Supervisors and managers need to be made aware that employees now have a right to refuse unsafe work caused by a co-worker’s use of a cell
    phone at the workplace.
  2. Employers are responsible for taking every precaution reasonable in the
    circumstances with respect to all known and potential hazards in the
    workplace, including those that have not been reduced to writing in the
    OHSA or its Regulations. The fact that a specific hazard has not been
    reduced to writing in the OHSA may not serve as a defense against a
    charge issued by the Ministry of Labour.
  3. Employers should make sure that all employees, including supervisory or
    managerial staff members are aware of changes to policies, rules, laws
    and Regulations that apply to their workplaces. This “notice” can be
    provided by implementing policies and procedures, posting signs, issuing
    communications to staff members, conducting training, etc.
  4. Employers need to ensure that processes put in place to address issues
    like work refusals are functioning as intended.
  5. Employers should bear in mind that records of discussions and
    disciplinary warnings can (and quite often do) form part of a Crown
    prosecutor’s brief. All employees involved in investigating complaints should be documenting all aspects of their investigation. The absence of such documentation can result in substantial liability for an employer in the event of a complaint, near miss or workplace incident.

In conclusion, although no statutory amendments have been made to the OHSA, the
warning from the Court and the Ministry of Labour is loud and clear: Distracted working will be treated just as severely as distracted driving. Employers and workers who ignore this warning do so at their own peril.

Written by Tushar Anandasagar

Tushar Anandasagar is an Associate Lawyer at LeClair and Associates P.C. He works
in all areas of Labour and Employment law, with a particular focus on Workplace Health
and Safety compliance and related issues. For further information or discussion, please
contact Tushar by email at Tushar@leclairandassociates.ca