Canada: Driving Outside Of The Lines: Regulatory System v. Autonomous Vehicles

Last Updated: January 31 2017
Article by McCague Borlack LLP

In recent months, tensions have risen between regulators and companies developing autonomous vehicles. Applying and waiting for the approval of permits may seem inordinate for developers eager to test out and improve their autonomous technology in a highly competitive and fast-paced field. Regulators, on the other hand, must balance the competing interests of private business as well as the safety and integrity of the roads for the public. The following are a few examples of this tension at play.

First, in May 2016, a company creating self-driving technology for use in autonomous trucking, called "Otto", released a video on YouTube demonstrating an autonomous truck driving on a stretch of public highway in Nevada with no one inside the cab. This directly contravened regulations set out by Nevada's Department of Motor Vehicles (DMV). The DMV requires that at least one licensed driver be at the wheel of a vehicle engaged in autonomous testing on public roads in order to intervene in the event of a failure. Despite being specifically advised of these regulations, Otto took to heart the mantra that it's easier to ask for forgiveness than permission by testing their trucks without a driver at the wheel. In the end, the stunt paid off for Otto, not only because the DMV's regulations are devoid of penalties for violators, but also because it garnered the attention of Uber who ended up purchasing Otto for $680 million dollars in August 2016.

Second, in December 2016, Uber took the bold step of implementing its self-driving program in San Francisco, wherein it integrated several autonomous Volvo XC90s into the local Uber fleet, making them available to pick up paying passengers. However, within only a few hours of its launch, one of the autonomous Volvos was filmed driving through a red light and Uber was ordered by the California DMV to remove the vehicles from public roads until it obtained the necessary $150.00 permit.

In true Uber fashion, the ride-sharing company refused to comply with the order on the basis of its belief that the law requiring permits does not technically apply to them. The law in California defines autonomous vehicles as those that drive: "without the active physical control or monitoring by a human operator."1 Since Uber (unlike Otto) had a licensed driver behind the wheel of the autonomous vehicles, the cars were technically considered self-driving and not autonomous, thus falling outside of the regulation for autonomous cars. Uber also stated that in the case of the red light violation, it was actually due to human error and not a failure of the company's self-driving technology. The DMV did not accept Uber's argument and revoked their vehicles' registration, forcing the removal of their self-driving vehicles from the road. Uber responded by promptly loading its Volvos onto flatbed trucks (operated by Otto) and transporting them to Arizona where it was permitted to freely test their vehicles on public roads.2

On January 25, 2017, several autonomous Uber vehicles were re-registered by the DMV and redeployed on San Francisco's streets. However, this concession comes with several caveats: they are only permitted to utilize the vehicles for mapping purposes, must have a human operator behind the wheel at all times, and may not engage self-driving mode.3

Although the above examples are located south of the border, it is nonetheless important to observe the relationship between regulators and autonomous car companies in order to prepare ourselves here in Canada. It was only in November of last year that three companies were approved to commence testing of autonomous vehicles on Ontario roads: University of Waterloo, Erwin Hymer Group and Blackberry QNX.4 Canada is the last of the G7 countries to approve such testing and if our regulations do not keep pace, we will be even more vulnerable to the rule-flaunting whims of a company like Uber. Hopefully Canadian regulators will realize that this new technology is real and ready to test, and they will quickly provide the appropriate regulatory guidelines to balance safety and the implementation of this new way to use our roadways.


1. California Department of Motor Vehicles

2. The Verge. Uber is Moving its Self-Driving Cars from San Francisco to Arizona. December 22, 2016.

3. CNET. Uber's Self-Driving cars back in SF, but now they're legal. January 25, 2017.

4. Ontario Ministry of Transportation, Automated Vehicles Coming to Ontario Roads. November 28, 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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