Mad Max, Poutine, and Motor Vehicle Liability: Who Is the “Driver” When the Car Drives Itself?
Sonia Leith, Neinstein LLP – July 2026
This past weekend, I found myself in a Tesla with my husband and our friends travelling along Highway 401 in self-driving mode. What began as a lighthearted conversation about how self-driving technology worked quickly turned into a very lawyerly discussion among four lawyers about responsibility, evidence, and what it means to be the operator of a vehicle when the vehicle purports to be doing the driving.
My friend was pleased to report that a previous “strike” against him had been removed. The strike had apparently been issued because, while the vehicle was in self-driving mode, he was not paying enough attention to the road. In his defence, he was eating poutine at the time. The car gave multiple warnings before the strike appeared on the screen. The exchange was funny, but it also captured something important: even the car seemed to understand that the human in the driver’s seat was still expected to supervise.
My husband then asked why the vehicle was travelling at 120 km/h on the 401. My friend explained that the driver could choose different driving profiles, effectively levels of aggressiveness, ranging from Sloth, Chill to Standard, Hurry and, at the top end, “Mad Max.” We were in Hurry mode. Tesla’s website claims that a Tesla cannot go above 150 km/hr in self-driving mode. That naturally led to my husband’s next question: what if the vehicle got a speeding ticket? My friends laughed and said that an officer was unlikely to accept “Mad Max did it” as a defence. I agreed. As the only personal injury lawyer in the vehicle, I was quick to point out that the person in the driver’s seat remains the operator of the vehicle.
The Tesla website provides:
Note: You are responsible for the speed and control of your vehicle at all times, whether FSD (Supervised) is enabled or not.
The starting point: the human driver remains responsible
Ontario’s current legal framework continues to place responsibility on the human being who operates the vehicle. The province’s Automated Vehicle Pilot Program allows the testing of certain automated vehicles under strict conditions, and Ontario’s regulation under the Highway Traffic Act defines driving broadly enough to include causing the operation of an automated vehicle, whether or not the automated driving system is engaged. In practical terms, that means a driver cannot simply point to the software and say, “the car was driving.”
More specifically, Ontario Regulation 306/15, Pilot Project, Automated Vehicles, made under the Highway Traffic Act, R.S.O. 1990, c. H.8, defines “drive,” in relation to an automated vehicle, to include “driving or causing the operation of the automated vehicle, with or without the automated driving system being engaged.” The regulation also defines the “dynamic driving task” to include operational tasks such as steering, braking, accelerating, and monitoring the vehicle and roadway, as well as tactical tasks such as responding to events and determining when to change lanes, turn, or use signals, but does not include a task required for strategic aspect of driving, such as determining destinations. That language is important because it recognizes that automated technology may perform some or all driving functions, while still preserving the legal concept that a person may be responsible for causing the vehicle to operate.
That may feel counterintuitive to members of the public. If a vehicle steers, accelerates, brakes, changes lanes, and follows a route with minimal input, why should the person behind the wheel be treated as the operator? The answer is that most systems available to consumers today may not be truly autonomous in the sense of replacing the driver – or at least not allowed in Ontario, yet. They are driver-assistance systems. They may be sophisticated, but they still require human supervision, attention, and the ability to intervene.
Speeding, mode selection, and the myth of the automated excuse
The “Mad Max” conversation is funny because it sounds absurd. But it also illustrates the central liability issue. If the driver chooses a more aggressive driving profile, sits in the driver’s seat, and allows the vehicle to proceed at a speed above the limit, it is difficult to imagine a court accepting the argument that the driver had no responsibility because the software selected the speed or lane change. A driver who activates a system, selects the settings, and fails to intervene when necessary is still participating in the operation of the vehicle.
That does not mean the driver will always be the only potentially liable party. If a collision is caused or contributed to by a defect in the vehicle, a sensor failure, a software issue, inadequate warnings, or misleading design, then the manufacturer, software developer, or other technology provider may become part of the liability analysis. But the existence of those potential claims does not eliminate the driver’s immediate obligation to pay attention and operate the vehicle safely. A recent viral video from British Columbia provides a less amusing version of the same issue. Media reports described footage of a Tesla travelling on the Trans-Canada Highway between Golden and Revelstoke while the driver appeared to be asleep at the wheel; reports also indicated there were children in the back seat, and that police were investigating. The incident attracted attention precisely because it put the marketing language of “self-driving” into conflict with the legal reality that driver-assistance technology does not make the person in the driver’s seat a passenger.
For a personal injury lawyer, the video raises the same questions that would matter after a collision: Was the driver awake, alert, and supervising? What system was engaged? What warnings were issued? Did the vehicle detect driver inattention? Were there settings, accessories, sunglasses, or other factors that interfered with monitoring? Maybe Poutine? And if the vehicle continued at highway speed while the driver was asleep, what does the vehicle’s own data reveal about both the human conduct and the system’s limits?
Discovery in the age of vehicle data
Our discussion turned to a practical litigation question: if there were an accident, how would anyone know how fast the vehicle was travelling if the driver was not paying attention? My answer was immediate. One of the first things I would request is the vehicle data: the route, speed, acceleration, braking, steering inputs, warnings, and any available camera or sensor information.
For personal injury lawyers, this is where self-driving technology may change the evidentiary landscape. In a typical motor vehicle case, a driver is often asked years later to recall speed, distance, timing, traffic conditions, and evasive actions with remarkable precision. Human memory is imperfect. Witnesses do their best, but their recollections may be incomplete, inconsistent, or physically impossible when tested against the engineering evidence.
A complete digital record of a vehicle’s movements would be enormously valuable. It could provide far more than the traditional “black box” information available in many vehicles. For an accident reconstruction engineer, a detailed record of the vehicle’s path, speed, system status, driver interventions, and warnings could be a dream come true. For litigants, it could narrow factual disputes. For insurers, it could affect early liability assessments. For courts, it could make some cases clearer and expose others as far more complicated than they first appear.
Speaking of insurers, s 2.2 of the Ontario Regulation 306/15 mandates the minimum liability coverage at $5,000,000 for automated vehicles, significantly more than a standard liability policy covering most Ontario drivers.
The real question is not whether the car is perfect
Much of the public discussion about self-driving vehicles focuses on whether we can trust the technology or whether the vehicle might malfunction. Those are important concerns, but they are not the only ones. The real question is whether the programming is better than, or at least an acceptable substitute for, human instinct, judgment, and reaction time in a given situation?
In some scenarios, automated systems may be better than people. They do not get tired, emotional, impatient, distracted by a text message, or tempted by hot poutine. They can process certain data quickly and consistently. In other scenarios, however, a human may recognize context, uncertainty, or danger in ways the system does not. The law will increasingly have to grapple with accidents that are not caused by a simple human error or a simple machine failure, but by the interaction between a human supervisor and an automated system.
What this means for personal injury claims
When a collision involves a vehicle operating with advanced driver-assistance or self-driving features, lawyers will need to think beyond the usual questions. It will still be necessary to ask what the driver saw, what the driver did, and whether the driver acted reasonably. But it will also be necessary to preserve and obtain the vehicle’s electronic data, identify which system was engaged, determine what warnings were given, examine whether the driver overrode the system, and consider whether the system performed as represented.
That evidence may affect every stage of the claim: liability, contributory negligence, product liability, expert reconstruction, examinations for discovery, mediation, and trial. It may also reshape how we assess credibility. A witness who is mistaken about speed may not be dishonest; they may simply be human. A vehicle data record, however, may provide a more objective account, subject of course to questions about accuracy, completeness, preservation, interpretation, and admissibility.
Mad Max did not spill the coffee
The morning after our drive, my friend sent our group text a photo of herself in the driver’s seat with coffee spilled all over her shirt. She blamed Mad Max.
Technology can assist, automate, warn, record, and sometimes even outperform us. But for now, whether the story is a funny conversation about poutine and “Mad Max” on the 401 or a viral video of a driver apparently asleep in British Columbia, the legal takeaway is the same: when a human being is seated behind the wheel, that person remains responsible. Full stop. The more sophisticated the technology becomes, the more important it will be for lawyers, insurers, engineers, and courts to understand not only what the driver did, but what the vehicle did, what data exists, and how responsibility should be allocated when human judgment and machine decision-making collide.