Court rejects intervening act argument in motor vehicle accident case

The Ontario Court of Appeal upheld a trial judge’s finding that the appellant’s conduct during a motor vehicle accident was a “but for” cause of the plaintiff’s injuries. The appellant failed to show any reviewable errors, the court said.

In that case, a man driving a Buick ran a red light, collided with a minivan, and injured its passenger. The injured party sued the Buick’s driver, the minivan’s driver, and the minivan’s owner.

The Buick’s driver settled this action for $220,000. He filed a third-party claim seeking from the appellant his contribution and indemnity for the settlement under s. 5 of Ontario’s Negligence Act, 1990.

The trial judge made the following findings. First, the appellant, who was driving slowly on a residential street, became angry when the Buick’s driver passed him. Next, the appellant caught up with the Buick’s driver and tried to stop him. The parties did not contest these factual findings on appeal.

The judge – applying the “but for” test for causation – ruled in favour of the Buick’s driver. The judge held that:

• The appellant’s threats of physical violence amounted to intentional tortious conduct
• The accident would not have occurred but for the appellant’s conduct
• The appellant was 50-percent responsible for causing the injuries
• The appellant should indemnify the Buick’s driver for $110,000

All arguments on appeal denied

In Moran v. Fabrizi, 2023 ONCA 21, the Ontario Court of Appeal dismissed the appeal.

First, the Court of Appeal determined that the trial judge properly applied the “but for” test for causation in Clements v. Clements, 2012 SCC 32 to the factual findings. While the judge made a comment mentioning the “material contribution” test, there was no basis and no need to apply this test, the court said.

The judge was simply observing that, if he could not find factual causation by applying the “but for” test, the appellant would still be liable under the “material contribution” test, the appellate court explained.

Second, the Court of Appeal ruled that the appellant could not rely on the intervening act argument. The appellate court rejected the assertion that the response of the Buick’s driver to the appellant’s aggression amounted to an intervening act that broke the causal link between the appellant’s actions and the injuries.

Lastly, the Court of Appeal held that the appellant could not invoke the “agony of the moment” doctrine to escape liability. He could not raise this as a defence because he was the one who created the emergency in the first place, the court said.

The Buick’s driver, who was the only one who could invoke this doctrine as a defence, did not plead it, the appellate court noted.