Feb 09, 2022

In December 2019, CBC News reported that a Kitchener man was ticketed by police after being caught watching a YouTube video while he was driving.  In May 2021, Waterloo Region police revealed that they had already issued more than twice as many tickets for distracted driving in the first half of the year, than were issued during the same period in 2020 (CTV News Kitchener, May 19). 

Distracted driving is a serious problem in this province.  It’s estimated that a driver is 23 times as likely to get into an accident while texting (Canadadrives.ca) and the risk of crashing increases at high speeds and in traffic, when an accident may occur in a blink of an eye while you take your attention away from the road.  Driver inattention is believed to play a role in the majority of accidents and inattentive drivers aren’t the only ones put at risk by their behaviour; many other road users may be impacted and seriously injured by one driver’s distracted driving action.

What constitutes ‘Distracted Driving’?

Distracted driving is any behaviour that takes a driver’s attention away from the road.  Under Ontario’s Highway Traffic Act, distracted driving is defined as “improper use of handheld communication/entertainment devices while behind the wheel”, including a cell phone, tablet, laptop, music device, handheld GPS device, and portable gaming equipment.  Further, police will ticket drivers for using a hand-held device even when the vehicle is stopped at a stop light or stop sign, unless the driver is calling emergency services.

A person who is ticketed for operating a handheld device while driving will receive a maximum fine of $1000, a 3-day licence suspension and 3 demerit points on their licence, for a first offence.  For a second or further offence, 6 demerit points will be imposed and there is an increase in maximum fines and the number of days of licence suspension. The driver or vehicle owner also faces charges for towing fees and for getting their vehicle out of the police impound lot, which can be a substantial additional cost.

There are other actions, although not explicitly illegal in Ontario, which may constitute distracted driving if they cause a driver to be inattentive to the road, particularly if the action results in an accident.  Potentially distracting actions include eating and drinking, lighting a cigarette, talking to backseat passengers, reading a map or book, changing a radio station, or being distracted by a pet.

A recent case of distracted driving involved a motorcycle collision with a deer, which resulted in serious injuries to the passenger on the motorcycle.  The injured passenger made a claim for damages against the driver, but the driver motioned to have the claim dismissed citing the ‘inevitable accident’ defence.  An Ontario judge did not accept this defence and found that the driver was negligent and his distraction was a key reason why the motorcycle crash occurred. The driver failed to see the deer before striking the animal because he looked away from the road just before the collision, when he turned to tell his passenger she was about to get wet or bent to see if his vision was clearer through his windshield, or when he looked down to check his gauges.  (Jones v. Jones, 2021).   The driver was also negligent in not wearing a visor or googles while driving in heavy rain and was travelling above the speed limit on a highway he wasn’t familiar with.

If you are injured in an accident involving a distracted driver how does the Ontario legal system determine who is negligent and liable for the accident?  As noted in a recent personal injury case arising from a serious Hamilton accident, Smith v. Safranyos (2018), Ontario courts rely on the ‘but for’ causation principle for determining negligence in driver-related accidents.  This means answering the question whether, on a balance of probabilities, would the plaintiff’s injuries have occurred ‘but for’ the defendant’s actions? 

In Smith, a two-vehicle crash occurred when a woman driving a vehicle containing four children failed to yield the right of way when she entered Upper Centennial Parkway, and was side-struck by another vehicle. The second vehicle was driven by a man who had consumed alcohol and was driving 15 km/hr over the speed limit.  The judge in this case concluded that the accident resulted because the female driver failed to stop her vehicle at the intersection, did not observe the other driver who was only about 125 meters away, and ultimately failed to yield to the other driver.  On the other hand, the judge surmised that it cannot be known whether the male driver could have prevented the crash, even if he had been driving prudently, or if his negligence contributed to the accident.

In another personal injury case, Uppal v. Judge (2016), the judge applied the ‘but for’ causation rule and concluded that the defendants can be held liable for causing the plaintiff’s injuries to be exacerbated and become more severe, which would likely not have occurred ‘but for’ the car accidents.  This case involved a man who had suffered injuries in previous accidents and as a result, had pre-existing physical injuries and mental health problems before he had the misfortune to be the victim in four more motor vehicle accidents.   The judge held the defendants in the four accidents equally liable for the plaintiff’s damages because it was difficult “if not impossible” to separate which of the individual accidents contributed to, or caused, specific injuries.  Nevertheless, it was clear that each subsequent accident worsened the man’s pre-existing neck, back and shoulder injuries in addition to his PTSD.

If you or a loved one were seriously injured in a distracted driving accident or as a result of another driving error, you may be eligible for compensation for any financial losses arising from your injuries.  Talk to an experienced car accident lawyer at Dietrich Law to find out how we can help.








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