What circumstances justified a finding of an immediate hazard?

Counsel for the defendant Vischon emphasized that whether the circumstances justified a finding of an immediate hazard should be assessed in light of where the legal obligation was placed and which driver was in the dominant position and which was in the servient. The defendant Vischon submitted the Vischon Vehicle was in the dominant position and the Dow Vehicle was in the servient. In that regard, the defendant Vischon relied on the decision of Walker v. Brownlee, 1952 CanLII 328 (SCC), [1952] 2 D.L.R. 450 at 461 (S.C.C.), where Cartwright J. stated as follows: While the decision of every motor vehicle accident collision case must depend on particular facts, I am of the opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali [origin of the malice].

The defendant Vischon submitted that if any doubt existed, it should be resolved in favour of the dominant driver, citing McCowan v. Arjune (2002), 169 B.C.A.C. 220, 2002 BCCA 267.