Court File and Parties

ONTARIO COURT OF JUSTICE DATE: October 22, 2021 COURT FILE No.: 3161 999 00 7114149B

BETWEEN:

CORPORATION OF THE CITY OF MISSISSAUGA

— AND —

DAVID KAZDAN

Before: Justice G.P. Renwick Heard on: 22 October 2021 Reasons for Judgment released on: 22 October 2021

Counsel: R. Patterson, agent for the Corporation of the City of Mississauga R. Burd, agent for the Appellant David Kazdan

Reasons for Judgment on S. 135 Provincial Offences Act Appeal

RENWICK J.:

Introduction

[1] This matter appeared before me today by way of a Provincial Offences Act appeal from conviction for driving while using a handheld communication device contrary to s. 78.1(1) of the Highway Traffic Act (“HTA”).

[2] The Appellant appeals a conviction following a trial before Her Worship Justice of the Peace J. Anand on 20 September 2018. The matter proceeded as a trial by way of an agreed statement of fact and an affidavit from the Appellant.

[3] The issue is simply defined: Does the proper interpretation of the legislation include in the exceptions to its operation an emergency room (“ER”) physician acting in the course of her duties.

[4] The Appellant produced no jurisprudence from any jurisdiction to support its suggested interpretation.

Analysis

[5] The legislation at issue reads:

78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 2009, c. 4, s. 2; 2015, c. 27, Sched. 7, s. 18.

…

Exceptions

(4) Subsection (1) does not apply to, (a) the driver of an ambulance, fire department vehicle or police department vehicle; (b) any other prescribed person or class of persons; (c) a person holding or using a device prescribed for the purpose of this subsection; or (d) a person engaged in a prescribed activity or in prescribed conditions or circumstances. 2009, c. 4, s. 2.

Same

(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services. 2009, c. 4, s. 2.

[6] The definitive approach to statutory interpretation is recognized by Elmer A. Driedger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87:

[T]oday there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intentions of Parliament.

[7] This principle is supported by s. 64(1) of the Legislation Act, 2006 S.O. 2006 c. 21, Sched. F, which reads:

Rule of liberal interpretation An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

[8] The Appellant argues that an interpretation of the exempted class of emergency services should include ER physicians when they are responding to a page for service.

[9] The Respondent’s argument is equally simple to state: The legislature did not see fit to add an exception to the legislation for ER physicians calling the ER when it could easily have done so. The law provides opportunities for motorists to use cellphones in a hands-free mode, or to push a button on a cellphone in order to answer a call or to dial a number. The legislation prohibits picking up a cellphone and going through the recently called numbers in order to be able to make a call. The Respondent submits that the interpretation which the Appellant seeks stretches the bounds of appropriate legislative interpretation.

[10] The Appellant made compelling policy arguments why it ought to be included in the class exempted by the legislation in ss. 78.1(4) and (5). There is no doubt that ER physicians perform an incredibly valued function in our community.

[11] However, after a careful consideration of the materials filed and the submissions, I am not persuaded that the learned Justice of the Peace made an error in law in concluding that the exemptions did not apply to the Appellant for several reasons.

[12] First, the learned Justice of the Peace found as a fact that the Appellant was not responding to an emergency, rather, he was calling back the ER in response to having been paged as an on-call physician. The affidavit evidence makes it clear that there was a backlog of patients in the ER and the Appellant was paged to come early for his shift to relieve the backlog. Though it may be obvious that patients waiting to see a physician in an ER may require urgent care, it is not obvious that there was any actual emergency to which the Appellant was responding.

[13] My role as an appeal justice precludes reconsideration of the facts unless a factual finding was not available on the evidence. The learned Justice of the Peace made a reasonable finding of fact that was open to her. While the Appellant was trying to contact his work, he was not actually engaged in performing an emergency service.

[14] Second, s. 78.1(4)(a) exempts drivers of ambulance, fire, or police vehicles from the prohibition at issue. There is no doubt that the Appellant was not driving an emergency vehicle at the time of the offence. Even if a reasonable interpretation of this subsection could be applied to an ER physician, I would not find that the exemption while driving a personal vehicle applies.

[15] Third, ER physicians are not enumerated in any of the exempted classes of motorists in the regulation written to exempt certain drivers from the reach of this law. The regulation relied on by the Appellant is known as Display Screens and Hand-held Devices, O. Reg. 366/09.

[16] I would note that many of the classes of motorists in this regulation are only exempted from the operation of s. 78(1) of the HTA relating to driving with visible display screens. Those exempted from operation of s. 78.1 seem to be limited to law enforcement officers. [1] Moreover, it is only while in the course of their duties that the exemption applies.

[17] Fourth, s. 78.1(5) provides an exemption for any motorist to the proscription of using a cellphone while driving in order to contact emergency services (“ambulance, police or fire department emergency services”). The Appellant urges the court to find that calling an ER room in these circumstances is akin to calling an emergency service.

[18] Respectfully, the interpretation sought is a tortured one. The only legislative intent that can be reasonably inferred from the enactment of s. 78.1(5) is that there exists an exemption from the legislation where motorists require immediate emergency assistance.

[19] For example, if a driver is suffering an immediate crisis, they may need to use a cellphone to call for help. Calling 9-1-1 to seek emergency medical, fire, or police assistance makes sense. It also makes sense to permit drivers an exemption from the law in true situations of emergency. Ambulance, police or fire departments have specialised equipment to allow them to navigate traffic in a timely way to provide emergency care. Calling an ER room in an emergency does little to assist the motorist in crisis. I do not accept that a motorist calling an ER department to learn of patient backlogs, or to report their anticipated arrival time to the ER meets the spirit of the legislative intent in s. 78.1(5).

[20] Lastly, including ER physicians in the exemptions invites confusion in the application and enforcement of the law. If a motorist holds or uses their cellphone, they may attract the attention of law enforcement agents. It will be obvious to a police officer whether or not the motorist is in crisis or is calling an emergency service (ambulance, fire, or police) for an actual emergency.

[21] If ER physicians are entitled to hold a cellphone while driving in order to call the ER to check its status, the police will be required to determine whether the purpose of the call fulfills the legislative intent. At best, this is unwieldly and incompatible with the goals of the legislation. At worst, this interpretation invites the use of additional investigative resources and the exercise of police discretion which is incompatible with road safety or efficient enforcement.

[22] Section 78.1(1) was added to the HTA with the enactment of the Countering Distracted Driving and Promoting Green Transportation Act, 2009, S.O. 2009 c.4. On third reading, on April 22, 2009, the Minister of Transportation described the purpose of the legislation this way:

[O]ur eyes-on-the-road, hands-on-the-wheel legislation aims to stop the use of hand-held wireless communication devices such as cellphones while driving. The goal is not to inconvenience people but to make our roads safer for them and for everyone else who shares our roads. For safety's sake, drivers should focus on one thing and one thing only: driving. [2]

[23] The only interpretation of the law which best serves the legislature's purpose in enacting the provision accords with the words plainly chosen in the act. Road safety is best achieved by restricting the class of those who are exempted from the law to actual first-responders or those seeking their assistance in emergency situations.

Conclusion

[24] I am not satisfied that the trial justice erred in finding that the Appellant was not included in the exemptions to s. 78.1 of the HTA.

[25] The appeal is dismissed.

Released: 22 October 2021 Justice G. Paul Renwick

Footnotes:

[1] See s. 9(1) through (10) of O. Reg. 366/09. [2] See: Ontario, Legislative Assembly, Official Report of the Debates (Hansard), 39th Parl., 1st Sess., (22 April 2009) (Hon. James Bradley).