Texting Vicariously: Are you liable for drivers’ in-cab cellphone habits?

TORONTO — Provincial cell phone laws mostly apply to the driver of a motor vehicle, but it’s not so inconceivable in this over-litigious culture that there could be legal ramifications for employers of those drivers too.

According to Toronto employment and labor law lawyers at Sherrard Kuzz LLP, fleet owners may be held vicariously liable for an act committed by a company driver.

It’s something to seriously consider as most provinces have a cellphone and texting ban in effect or in the works. (Click here for this week’s online feature that examines how the trucking industry and government attempt to control telematic technology while balancing highway safety and transport efficiency).

To date, there hasn’t been any such case decided in Canada, however, if U.S. blowback is anything to go by, it’s quite possible such a scenario will be tested here eventually. And you don’t want to be the company to get the leading role in the precedent-setting play.

Stateside in 1999, the family of a motorcyclist sued an investment banking firm after the rider was killed by a bank employee who struck him while talking on his cell phone. They settled for $500,000.

In another case in Virginia, a lawyer struck and killed a young girl while allegedly talking to a client. A judge determined that her law firm Cooley Godward was vicariously liable because she was ­conducting business over the cell phone at the time.

Beyond making sure all employees and even contract drivers are equipped with the approved hands-free or Bluetooth alternatives, Sherrard Kuzz advises employers to create a workplace policy that clearly states that breaching the Act will be subject to discipline and possibly termination for repeat offences.


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