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LEGAL REPORT: LABOUR & EMPLOYMENT An accident waiting to happen Lawsuits haven't really hit Canada yet, but U.S. companies are already finding themselves liable for employees who have automobile accidents while talking on their cellphones. BY HELEN BURNET T A dvances in wireless technol- ogy and the demands of the modern workplace have taken the office to places that, up until a few years ago, it had never been before. People now can essentially do their jobs anytime and anyplace. But should a person's work follow them be- hind the wheel? Many labour and em- ployment lawyers across the country say it's a hot issue and one Canadian em- ployers need to watch out for. With the increased popularity of PDAs and BlackBerrys, the tolerance level for an employee taking their time to return a message has decreased, says Tina Gies- brecht, a partner in the labour and em- ployment group at McCarthy Tétrault LLP's Calgary office. "It's not hard to see people using it during their commute or during the day when they're off to meet- ings, and that kind of thing. Our work- place moves so quickly," she adds. Russel Zinn, a senior partner in Ogilvy Renault LLP's employment and labour law practice in Ottawa, says Canadian employers should be paying attention. "This is the concern that the employer has to have, that if it has employees out on the road, as many companies do, and they're constantly . . . or regularly on their cellphones, its only a matter of time before there is an accident, whether its related to their cellphone or not. We've certainly been advising our clients, as part of the risk management advice that we give them, that this is a critical area." The Canadian Centre for Occupational Health and Safety has flagged cellphone use while driving as a safety hazard, noting that the potential for injury and property damage should be a concern for employers. While there haven't been any Canadian cases on employer liability for employees who've crashed while talking on the phone for work purposes, there have been several in the U.S. Three years ago, law firm Cooley God- ward LLP settled for an undisclosed amount after a 15-year-old was struck and killed by a lawyer as she was driving home www. C ANADIAN Law ye rmag.com FEBRU AR Y 2008 45 JEREMY BRUNEEL