A recent motion decision dealt with the standard of care in emergency situations.
In Dubois v. Ford Credit Canada Leasing, 2012 ONSC 7311 (S.C.J.), the plaintiff was a passenger in a vehicle being driven by Gunn. An oncoming vehicle crossed into Gunn's lane and he swerved left to avoid the accident. Unfortunately, the other driver also swerved and they collided.
Gunn brought a motion for summary judgment on the basis that his actions occurred in an emergency situation and he was not negligent on the basis of the "agony of the collision" principle. Justice Spence reviewed three formulations of the test for negligence in an emergency:
1. Which focuses on whether the driver was driving with the skill and care expected of a reasonable driver at the time and place in issue;
2. Which provides that the driver has a duty to extricate himself and his passengers from the situation with safety if possible, but his conduct is not to be judged by the standards involving deliberation and the opportunity for careful and conscious decision. He is not negligent for failing to adopt the best course of action in the light of hindsight;
3. Which provides that if driver A loses control and seeks to apportion blame on B, A must show that B became aware or should have become aware and had an opportunity to avoid the accident.
Justice Spence concluded:
 The conclusion to be drawn from the above analysis is that the test to be applied is properly set out in the first formulation on the understanding that, as emphasized in the second formulation, a driver in the “agony of a collision” generated by an emergency, may properly be considered to have acted reasonably even though his conduct might not be considered reasonable if it had occurred in circumstances that offered a reasonable time for decision.
Justice Spence dismissed the motion for summary judgment, as there were competing expert opinions and the potential for unfairness to the plaintiff, who was an innocent passenger. Although the decision is an interesting summary of the "agony of the collision" principles, it also imports a fairness component, which introduces a new factor in the analysis.