Advancing technology is bringing us ever closer to the vision of highly autonomous vehicles, but there are still related legislative and legal hurdles to overcome before such equipment is broadly used.
“Use on Canadian public roads is still pretty limited,” said Jaclyne Reive, a partner with Miller Thomson LLP, during a presentation for the Private Motor Truck Council of Canada (PMTC).
Only five provinces have legislation in place or in the works to deal with autonomous vehicles. Of those, Ontario and Quebec are the only jurisdictions that have legislation in force. Saskatchewan, Manitoba and Nova Scotia have developed legislation, but still require permits to operate such equipment. Ontario also restricts aftermarket SAE Level 3 driving systems to pilot programs.
Level 3 refers to autonomous vehicles that require drivers to remain alert and ready to take control if a system is unable to execute a task.
British Columbia and Alberta are still involved in tests, though. The Aurora Connected Vehicle Technology Testbed is exploring connected vehicle technologies on a UBC campus. In Alberta, where highly autonomous vehicles require a specific exemption from the provincial registrar, tests are underway at mines and in the oil sands. Low-speed autonomous vehicles are being tested in Edmonton and Calgary, too.
“Even though the legislation still isn’t in place, this is something that’s at the top of their minds,” Reive said.
“It seems the provinces are supportive of autonomous vehicles.”
Driving laws still apply
But existing rules like distracted and impaired driving laws continue to apply to the drivers who ultimately remain responsible for the safe operation of such vehicles.
“There’s nothing in the legislation to say the technology manufacturer is liable [for a collision],” she added. It’s admittedly a grey area if something goes wrong. But the developers of autonomous vehicles seem to be willing to shoulder the responsibility for any potential technical failures when it comes to the early systems.
Much of the Level 3 work is focusing on initial and middle-mile deliveries between distribution centers. “Those routes are going to be predictable, they’re repeated, they’re short,” Reive said. “We haven’t seen a lot of final-mile-to-consumer just yet.”
Legal considerations for fleets
There are still legal issues for fleets to consider if they want to test autonomous vehicles, she said. Those extend to potential liability for personal injury and product damage, but also the ownership of intellectual property and the data autonomous vehicles collect.
In a contract, this can mean requiring service providers to ensure that systems are in good working order. Depending on the laws in a particular jurisdiction, covenants might need to specify drivers can easily engage and disengage the system, that vehicles will safely move out of traffic and come to a stop if something fails, or that alerts are sounded when failures are detected and systems engaged.
Service providers should accept that drivers will have full care and control of the autonomous vehicle, that the service providers will accept liability for technology-caused at-fault collisions, and that everyone will comply with relevant legislation and rules of the road, Reive said.
Distracted and impaired driving laws still apply to the drivers who are responsible for such vehicles, she offered as an example. Nova Scotia’s legislation also specifically requires a human to be at the controls at all times.
The scope of the contract will establish a framework of its own, such as the nature of the route, the number of autonomous vehicles, and what happens if a specially trained driver is not available. Will any other driver be placed at the controls, or will another non-autonomous truck be provided in such a case? And what if the weather is poor? “We are in Canada,” she said.
Legal documents will also need to address who owns the underlining intellectual property, and who can access the data collected during transportation or testing.
“All of them have connected vehicle technology,” Reive explained. If the supplier is licensing third-party software, there’s the question of whether they can even grant the fleet access to the intellectual property.
“There’s cameras, there’s sensors being used. An image is considered personal information from someone,” she said, referring to challenges that could emerge with data breaches. Insurers might require extra coverage relating to cybertheft because of it.
“Who will be the owner of that data? And if it’s not you, will you have the licence to be able to use it?” she asked.
There are plenty of questions, and well-structured contracts will be among the keys to ensuring such questions are answered.