Canada: Transportation Pilot Projects In Ontario And British Columbia

Recent technological advances in self-driving cars, e-scooters and electric low-speed vehicles are rapidly changing the nature of personal and commercial transportation. While some laud such technology as convenient, inexpensive, and environmentally-friendly alternatives to traditional means of transportation, others are concerned about the safety ramifications of their presence on roads. Generally, traffic laws prohibit such new forms of transportation on public roads, but there are legislative options for their limited early introduction through pilot programs.

There has been a particular focus on e-scooters in Canadian cities recently. Please refer to our previous article on the subject here.

Ontario Legislative Framework

In 2005, the Ontario Government modified the Highway Traffic Act1 ("HTA") to create a statutory mechanism by which it can introduce pilot projects. Under the HTA, the Ontario Government is "authorized to establish a project for research into or the testing or evaluation of any matter relevant to highway traffic."2 A pilot project allows the use of vehicles that, but for the pilot project, are contrary to traffic laws.

A pilot phase allows the ministry to establish rules, monitor developments, and evaluate the safety of new transportation technology. The HTA mandates that a pilot phase be no longer than 12 years, and most pilot projects have a life of 10 years.

Ontario Pilot Projects

Autonomous vehicles, also known as self-driving cars, have received significant media attention in the past few years. Such vehicles are not compliant with the HTA – for example, driving a motor vehicle without a driver in the driver's seat is contrary to stunt driving laws under the HTA.3 In 2016, the Ontario Government thus launched a 10-year pilot project that allowed eligible manufacturing companies to apply to test automated vehicles. These vehicles must be equipped with Society of Automotive Engineers ("SAE") Level 3 technology or higher, meaning they can operate with minimal or no human intervention. The pilot project was updated in January 2019 to allow public use of automated vehicles equipped with SAE Level 3 technology available for sale in Canada on Ontario roads, subject to certain restrictions.

Low speed vehicles ("LSVs") are another example of a recent pilot project under the HTA. LSVs are cars powered by an electric powertrain designed to allow the vehicle to attain a speed of 32 km/h but not more than 40 km/h. LSVs have fewer safety features than passenger cars and are not subject to the same safety standards. In 2017, in an effort to support environmentally-friendly forms of transportation, the Ontario Government launched a pilot project permitting LSVs to operate on roads with speed limits of up to 50 km/h. Any driver with a valid driver's licence and insurance may operate an LSV in a municipality that has passed an authorizing by-law. This pilot project's goal is to provide the Ontario Government with evidence to determine whether LSVs should be allowed on Ontario roads, and whether a permanent legislative framework is required.

A 2018 joint e-scooter pilot project between Lime (Neutron Holdings, Inc.) and the City of Waterloo is an example of an alternative to introducing pilot projects under the HTA. This pilot project permitted users to rent and ride e-scooters on University of Waterloo's David Johnston Research and Technology Park and surrounding areas. Unlike typical Ontario pilot projects, the City of Waterloo and Lime restricted the use of e-scooters to private lands, as the HTA prohibits their use on public roads. This project rolled out in phases, with the first nine-week phase concluding in November 2018. The City of Waterloo and Lime recorded use data with the ultimate intention of presenting such data to the Ontario Government to integrate e-scooters into the HTA.

British Columbia Legislative Framework

Unlike Ontario, British Columbia does not have designated provisions authorizing pilot projects under the British Columbia Motor Vehicle Act4 ("MVA"). Novel forms of transportation on public highways can still be introduced into legislation by way of an enabling regulation. The MVA specifically provides that the BC Government may "make regulations in respect of vehicles driven, used or operated on rural and municipality roads."5

British Columbia Pilot Projects

Neighbourhood Zero Emission Vehicles ("NZEVs") are LSVs in BC. In 2008, the BC Government passed a regulation6 under the MVA allowing NZEVs to be operated on highways with a speed limit of 40km/h or less, and on highways with speed limits between 40km/h and 50km/h with the authorization of the local municipality or the Minister of Transportation and Infrastructure. Similar to LSVs, operators of NZEVs must have a valid driver's license, insurance, and license plate from the Insurance Corporation of British Columbia ("ICBC"). A number of municipalities7 have since authorized NZEVs in designated zones.

In 2016, the BC Government passed a regulation8 under the MVA authorizing Neighbourhood Golf Carts ("NGCs") not capable of travelling faster than 32km/h to operate in the Village of Chase and Town of Qualicum Beach. NGCs must have vehicle specifications as set out in the regulation, and receive a permit from the applicable municipality. The roads on which an NGC can operate must have a maximum speed limit of 50 km/h and must have signs indicating that NGCs are permitted. In addition, an operator of an NGC must be insured and licenced by the ICBC, and the NGC must not carry passengers under 9 years of age. The launch of the NGC pilot project in the Village of Chase was not without opposition9. The compromise was a promise from the Village to monitor the use of NGCs for two years with opportunity for feedback from the community.10

As cities become more densely populated and as suburban and rural areas increasingly demand more choices for mobility over short distances, e-scooters and other LSVs will be vehicles to watch out for, both for leisure trips and the morning commute and for last-mile package delivery. Companies looking for opportunities in this area can benefit from McCarthy Tétrault's firm grasp of the existing regulatory environment and our focus on innovation in our clients' businesses.

Footnotes

[1] RSO 1990, c H.8 [HTA].

[2] Ibid. at s. 228(1).

[3] O Reg 455/07, s 3(6).

[4] RSBC 1996, c 318.

[5] Ibid. at s. 209.

[6] BC Reg 351/2008.

[7] https://www.tranbc.ca/2015/04/10/what-are-nzev-zones-and-why-do-they-matter/

[8] BC Reg 212/2016.

[9] https://www.saobserver.net/news/chase-residents-fight-golf-cart-use/

[10] https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/neighbourhood-golf-carts

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