Case: Bezanson v. Insurance Corporation of British Columbia, 2026 BCCA 130 (CanLII)
Keywords: motorcycle accident; “agony of the moment” doctrine
Synopsis:
The Appellant, driving home on his motorcycle, is approaching the T-intersection of East 29th Avenue and Nanaimo Street, Vancouver. A pick-up truck turns left onto Nanaimo Street, and then “immediately drift[s]” in front of the Appellant. (See para. 4). After the Appellant slows down to avoid the “clear hazard” presented by the pick-up, he attempts to pass but fails to navigate a curve in the road, crosses the median and collides head on with a Toyota FJ Cruiser travelling north. (See paras. 3-5). The entire sequence of events occurs over a period of “no more than, 10 seconds”. (See para. 8).
The Appellant says his injuries are caused by the negligence of the (unidentified) pick-up driver who “forced him to take evasive action leading to the collision”. Following a trial on liability only, the Trial Judge (Kirchner J.) concludes the Appellant failed to establish the collision was caused in fact and in law by the pick-up driver’s negligence. (See para. 1). On appeal, the Appellant submits the Trial Judge erred by, among other things, misapplying the “agony of the moment doctrine”. (See para. 2). The Court of Appeal (Warren, Groberman, and Edelmann JJ.A.) dismisses the appeal. (See para. 41).
Importance:
The Court of Appeal discussed the “agony of the moment” doctrine at paras. 17-23; ultimately concluding that the Trial Judge’s approach provided no basis for appellate intervention (i.e., as per the Supreme Court of Canada’s guidance regarding deference in Nelson (City) v. Mowatt, 2017 SCC 8 at para. 38).
The Court of Appeal referred to two decisions as providing some authority for the doctrine: Biggar v. Enns, 2017 BCSC 2290 and Graham v. Carson, 2015 BCCA 310. In Biggar at para. 50, Sharma J. noted that “Courts have accepted that even if a driver applied less than a perfect effort to avoid an accident, when that is done in a manner to avoid a more serious collision, more latitude is given to the driver”. Similarly, in Graham Savage J.A. observed that “a court does not judge with the benefit of hindsight or expect perfection in decision making in emergent circumstances”. (See para. 15).
For the Appellant herein, these cases “illustrate that when a plaintiff is forced to react in an emergency created by the defendant, the plaintiff’s split-second decision – even if it leads to a crash – will not lightly be deemed unreasonable”. (See para. 19). The Appellant’s position was that, contrary to these authorities, the Trial Judge refused to give “any latitude” and “held him to a standard of care approaching perfection” – all of which meant the Trial Judge was unable to recognize that the Appellant’s actions, while not “ideal”, were “understandable”. (See para. 19).
For the Court of Appeal, however, this position could not be reconciled with the Trial Judge’s key findings of fact, including that he was not “forced to react in an emergency” or make a “split-second decision” and was not “ensconced in the agony of the moment” when he made the lane change. (See para. 20).
Bottom line: for the Trial Judge, 10 seconds was a “fair bit of time to react”; and the Court of Appeal found no reviewable error in that assessment. (See paras. 20, 22).
Of further interest, the Court of Appeal summarized the “but for” test for factual causation at paras. 24-25, observing:
- that plaintiffs must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred;
- that this is a factual inquiry (via quotation from Clements v. Clements, 2012 SCC 32 at para. 8); and
- that the defendant’s negligence need not be the sole cause of the injury, so long as it is a necessary cause (see para. 25).
In this case, the Court of Appeal again found no error in the Trial Judge’s finding that the pick-up driver’s negligence was not a factual cause of the collision. (See paras. 26-27). For the Court of Appeal,
This case is different because the trial judge’s analysis…did not focus on whether [the Appellant] might have avoided the collision by responding differently to an ongoing hazard created by the pick-up truck driver. Rather, the judge found that by slowing down and backing off, [the Appellant] avoided the hazard created by the pick-up truck driver’s negligence; he was not at risk from the pick-up truck when he moved into the left lane; and the maneuver into the left lane was not taken to avoid a collision. (See para. 30).
Finally, the Court of Appeal briefly addressed legal causation at paras. 36-40, noting that,
- “where causation in fact has not been established, it is not helpful to proceed to consider legal causation, and I would decline to do so” (see para. 36);
- Legal causation is about “whether the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable” (see para. 39); and
- “the process of determining legal causation…demands value judgments and the focus is, necessarily, on whether the damage caused in fact by the wrongful conduct was a foreseeable consequence of the wrongful conduct” (see para. 40).
For the Court of Appeal, “it is not rational to attempt to assess whether it would be fair to attach legal liability for injury to particular conduct without first concluding that the conduct caused the injury”. (See para. 40).
Counsel for the Appellant: Colin McIvor (McCarthy Tétrault LLP, Vancouver) & Nathaniel Hartney (Preszler Law BC, Vancouver)
Counsel for the Respondent: Dermot Devine (Carraig Law Group, Vancouver) & Q Chen