I read an alarming article^[1] recently reporting that 85% of Canadian commercial drivers experienced a near-miss due to distraction in the last year, higher than the global average of 79%. From a survey of 1,550 commercial drivers in seven countries—including 150 in Canada—the Samsara report^[2] flags the top distractions as smoking (cigarettes, e-cigs, vaping) and checking phones for social media and messages.

That’s not to mention other sources of distraction I have seen alleged including (and sometimes in addition to) eating, looking at a GPS, switching music, watching videos, applying make-up, getting dressed, reaching for something and arguing with a passenger (usually a child or spouse), while driving.

From a PI lawyer’s perspective, all is fodder for discovery questioning. Yet, in my 30 years of practice, I can count on one hand the number of times I have heard someone actually admit under oath that they were distracted while driving.

The statistics track with what I have seen in some mediations these days. Distraction is no longer a sideshow, it is often the centre of the liability fight. The number is a wake-up call, but in civil litigation it is still proof, tied to the seconds that mattered, that moves the needle.

The Legal Frame

Ontario’s statutory scheme sets the baseline. Section 78 of the Highway Traffic Act, RSO 1990, c H.8^[3] prohibits display screens, like a TV or computer, that are visible to the driver, and section 78.1 prohibits holding or using a hand-held wireless communication device while driving. Those are matters covered by the Provincial Offences Act R.S.O. 1990, c. P.33^[4], not negligence per se, but courts routinely consider the same safety purpose when they assess ordinary care in the civil context. The statute’s message is simple and unforgiving. Eyes on the road, hands off the phone.

Two Ontario Court of Appeal decisions anchor the analysis on handheld devices. In R. v. Kazemi, 2013 ONCA 585^[5], the Court held that “holding” means just that. The briefest contact with a phone while driving engages the prohibition. And in R. v. Pizzurro, 2013 ONCA 584^[6], the Court confirmed that the Crown need not prove the device’s technical capability to transmit in order to establish the offence for a cellphone. Handhelds are categorically caught. The criminal context differs from negligence, but I think the reasoning about road safety and the dangers of divided attention is directly relevant to the civil standard of care.

What Counts as “Distraction” in Civil Cases

From a liability perspective, distraction is broader than texting. I’ve seen counsel on both sides now test and rebut theories involving dialing, reading alerts, scrolling music apps, entering a GPS destination, glancing at a smartwatch, interacting with in-cab tablets, handling paper notes, eating or drinking, and even intense passenger interactions.

Plaintiffs do well when they tie attention-off-forward-path to the critical pre-impact window. Defendants are most effective when they concede the possibility of some device interaction but insist on the timing and causation gap. The legal question is not whether a driver is a saint. It is whether inattention at the material moment caused or contributed to the collision.

The Evidentiary Core: How Counsel Prove (or Undermine) Distraction

Phone records are the first battleground. Ontario courts will order targeted production of carrier call and text logs when distraction is pleaded, but they expect proportionality and tight time windows bracketing the crash.

In Austin v. Smith, 2017 ONSC 5146^[7], the court compelled production notwithstanding the absence of direct proof of contemporaneous use, recognizing both the probative value of the records and the need to confine the request to a narrow period around impact. The case is a practical blueprint. Plead distraction expressly, articulate the temporal scope with precision, and aim first at carrier logs before you get an order for device extraction.

In Comisso (Litigation Guardian of) v. York (Regional Municipality) Police Services Board, 2010 ONSC 3620^[8], the court took a similarly pragmatic view, ordering production where access to the records could “clear up the mystery” of what actually happened. The decision reflects a theme I have seen recently. Where a discrete digital trail can answer a live causation question, courts are prepared to strike a balance that protects privacy while allowing focused disclosure.

Even with production, counsel have to live with technical limits. Carrier bills capture call and SMS metadata, but iMessage and over-the-top apps often sit outside those logs. Without consent or a compelling, particularized evidentiary foundation, full device imaging is a hard sell. Proportionality under the Rules of Civil Procedure—and the privacy interests at stake—usually points first to the least intrusive, highest-yield source. Framed correctly, that means tight windows around the event, carrier records before device extraction, and a willingness to revisit scope if initial production raises new, specific questions.

Beyond phones, there are other digital inquiries. Event Data Recorder or EDR (“black box”) downloads, airbag module data, and speed-brake-steer traces let parties infer whether a driver perceived and reacted to a hazard^[10]. A no-brake signature in the final seconds can align with distraction[10]. Defence counsel will counter that startle responses and misperception can produce similar patterns. Increasingly, infotainment logs, fleet telematics, and intersection or storefront video supply the corroboration that breaks stalemates^[11].

In commercial cases, in-cab camera policies and whether the fleet followed its own telematics protocols can be as important as the data itself. The Samsara Report^[12] near-miss statistic I reference earlier simply underscores why that evidence exists and why it is probative.

Human evidence still wins cases. Admissions at the scene (“I looked down for a second”), the rare examination-for-discovery concession, and insurer statements can be decisive. Eyewitness accounts about a glow on the driver’s face, head-down posture, or a phone to the ear are useful, provided counsel lock down timing and sightlines to avoid overreach.

Defence counsel will work the timeline just as hard, insisting that even if there was some brief device contact, the plaintiff still has to prove it coincided with the hazard window and actually caused the impact.

When the Plaintiff Was Also Distracted: Contributory Negligence

Ontario’s Negligence Act, RSO 1990, c N.1^[13], governs apportionment where the plaintiff’s negligence contributed to the damage.

When a pedestrian is head-down on a phone, crossing mid-block in poor lighting, or when a plaintiff driver was also interacting with a device, the analysis shifts to comparative fault. There is no automatic percentage for “phone in hand.” Relevant factors will be right-of-way, visibility, speed, and reaction evidence. Courts will then assign shares that reflect who could and should have prevented the harm at the moment the risk crystallized. I’ve see heavy splits in both directions depending on those facts, but the statute’s role is constant. The court must apportion by degree of fault.

A Mediator’s Practical Lens

In caucus, targeted data moves positions. When clean, time-boxed carrier logs line up with EDR signatures and a snippet of video showing delayed reaction, liability assessments change quickly. Without corroboration, “phone” arguments often sound moralistic and stall talks. Privacy fights are predictable value drains and time wasters in my view. I have watched parties spend five figures litigating device imaging only to resolve the case on the strength of carrier logs that could have been exchanged months earlier.

The most productive mediations translate the Highway Traffic Act’s safety purpose into the civil story a trier of fact will actually hear. Not that the driver is “bad” for touching a phone, but that the attention lapse coincided with the hazard window and explains the absence of timely reaction. Defendants who focus on timing and causation rather than character, and plaintiffs who acknowledge their own client’s minor lapses while still proving the defendant’s decisive inattention, tend to find the settlement corridor faster.

Closing Thought

The Samsara near-miss numbers^[14] reflect how we actually live and drive. Attention is the scarce commodity. Our courts resolve these cases with familiar tools—duty, breach, causation, and apportionment—but the proof has become more digital, more precise, and, when used properly, more dispositive.

As a neutral mediator, my job is to keep both rooms anchored to the few seconds that mattered and to help them trade paper for answers, namely tight pleadings, tight production, layered corroboration, and candid risk assessment on contributory negligence when the plaintiff was also less than perfect. The parties who do that work early are the ones who settle on the merits, not the noise.