The trucking industry is facing new challenges with the introduction of electric vehicles, evolving sustainability expectations, and complex legal scenarios. During a panel at the Women’s Trucking Federation of Canada’s seventh annual Bridging the Barriers conference in Mississauga, Ont., legal experts answered some of these pressing questions.
Q: Can a fleet be sued if their battery-powered trucks catch fire and cause damage?
A: Alan Cofman, a lawyer specializing in transport and logistics and a partner at Loopstra Nixon, addressed this concern: “Generally speaking, [the answer] is going to be yes.” He explained that if the fleet fails to take appropriate precautions, such as proper maintenance, they could be held liable just like in any other situation. However, Cofman pointed out that most fleets would have insurance on their electric vehicles, so liability may fall under those insurance policies.
Cofman further elaborated on the complexities involved when transporting batteries as cargo: “If you’re carrying batteries as cargo…it’s going to be classified as dangerous goods.”
This adds layers of regulatory compliance, including general negligence law, contract law, and specific indemnifications within contracts. He also warned that transporting batteries without adhering to regulations could lead to penalties, such as points on the Commercial Vehicle Operator’s Registration (CVOR) in Ontario, or the corresponding scheme in Quebec. Most insurance policies exclude battery transport coverage unless specific riders or separate policies are in place, Cofman added.
Q: Is it the employer’s responsibility to train drivers on safety protocols for electric vehicles?
A: Bobbi-Ann Wallace, an expert in employment law who is also a partner at Loopstra Nixon, confirmed that employers are responsible for this training: “There is general legislative requirement for employers to provide a safe work environment and to comply with public safety obligations. So the employee should be trained whenever the employer requires an employee to operate a vehicle.”
Wallace said employers should also review employment agreements and company policies, as these may impose additional training and safety obligations beyond the legal minimums.
Q: How should employers handle a driver refusing to operate non-diesel-powered vehicles?
A: Wallace suggested a careful approach, stating that the first step is to determine the reason behind the refusal: “Is it because they lack the appropriate training?” If so, the employer is obligated to provide that training. If there is no reasonable explanation for the refusal, and the job duties include operating non-diesel vehicles, the employer may have grounds for dismissal.
However, Wallace warned, “If you’re dismissing the employee, then you have some risk that they may bring a claim.” She advised employers to delve deeply into the reason for refusal to avoid potential legal disputes.
Q: Will there be new legislation on the type of fire extinguishers required in trucks, including battery-electric?
A: Cofman addressed this by pointing out the complexity of regulations that could apply depending on jurisdiction. “If the trucks are provincially regulated in Ontario, there are sections in the Ontario Fire Code that specify the requirements for fire extinguishers. If the trucks are federally regulated for cross-border operations, there are regulations under the Canada Labour Code for fire extinguishers.”
He added that trucks are most likely required to have ABC-type fire extinguishers, which are suitable for various types of fires, including those involving ordinary solids, flammable liquids, gases, vapors, and electrically actuated fires. “This is important as other fire extinguishers may not be effective for battery fires in electric vehicles,” Cofman noted.
Q: What can an employee do if they are dismissed due to treatment that requires time off?
A: Referring to a specific case where an employee was dismissed after discussing the need for time off to undergo infertility treatment (IVF), Wallace stated that only some companies are required to pay severance, noting the distinction between termination pay and severance pay. She explained that if the dismissal was without cause, “everyone terminated is entitled to some form of termination pay.” However, Wallace emphasized that the details of the employment agreement and relevant employment standards legislation would need to be examined to determine the full scope of the employee’s rights.
She pointed out that the employee might have multiple avenues to pursue a claim, such as human rights tribunals, labor boards, or the courts. Wallace recommended consulting an employment lawyer specializing in wrongful dismissal cases, given the fact-specific nature of the situation.
Q: Are ‘nuclear verdicts’ coming to Canada?
A: Cofman addressed this concern by stating that nuclear verdicts, which are extraordinarily large legal judgments, are not coming to Canada. “If you dip your toe into the United States, you are going to be exposed to nuclear verdicts,” he said, explaining that these large verdicts are primarily a U.S. issue, often resulting in substantial financial exposure for companies operating there.
“Canada has a Supreme Court trilogy of cases that capped non-pecuniary damages, which are indexed to inflation,” Cofman said, adding that pecuniary losses are often less of a concern in Canada due to public insurance schemes like those under the Workplace Safety and Insurance Board, which provide compensation for workplace injuries and reduce the need for extensive legal claims to cover out-of-pocket expenses. He recommends companies operating in the U.S. should consult legal experts on corporate structuring and insurance programs to mitigate these risks.
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