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LEGAL REPORT: LABOUR & EMPLOYMENT "I don't think we need to wait for big damage awards to know that this is an issue that employers should be addressing [by] educating employees and minimizing their own risks." — TINA GIESBRECHT, MCCARTHY TÉTRAULT LLP and making a business call on her mobile. The lawyer was ordered to pay the victim's family US$2 million. She also served a one-year sentence and lost her licence to practise law. In 2001, the state of Hawaii paid a New Jersey man US$1.5 million for injuries he suffered after being struck by a teacher, who had just finished using her cell on the way to work. The same year, Ar- kansas lumber company Dyke Industries lost a US$21-million lawsuit (later settled for US$16.2 million) after a 78-year-old woman was struck by a vehicle driven by one of the company's salesmen, who was using his phone for a sales call. Hugh Christie is leader of the national practice group for employment and la- bour law at Gowling Lafleur Henderson LLP in Toronto. He says there are two sources of liability an employer can run into here. The first is pure vicarious li- ability, where the car is used by an em- ployee, on work time, and the phone is used for work purposes. In this case, the employer might be found vicariously li- able, as it is responsible for the employee while at work. Equally or perhaps more serious, he says, is direct liability flowing from an employer owning the car, or an employer who is providing the cellphone to the employee and aware that they are making calls to customers. "Even worse would be participating in, say, a con- ference-call meeting, an internal meet- ing of the employer while driving," or, Christie adds, being expected to call into a regularly scheduled meeting when the employer knows that the employee is on the road at that time. A study published in the British Medi- cal Journal in 2005 says a person using a mobile phone is four times more likely to have a crash that will involve a trip to the hospital, and that the use of hands- free sets does not seem to reduce the risk. Sometimes the water We provide proactive advice and representation in: corporate restructuring (employee issues) recruitment and compensation issues www.filion.on.ca 46 FEBRU AR Y 2008 www. C ANADIAN Law ye rmag.com is deeper than it looks. Practicing exclusively in the area of employment and labour law, we have the unique ability to see not only what is on the surface, but what may lie beneath.