What factors are considered to be "general practice" in a tort action?

Nova Scotia, Canada


The following excerpt is from Johansson v. General Motors of Canada Ltd., 2012 NSCA 120 (CanLII):

Klar, Tort Law (5th ed. 2012), supra, pp. 355-59 also discusses these factors, then (pp. 363-5) comments on industry practice: 5. GENERAL PRACTICE A very useful factor in determining whether a person’s conduct was reasonable or not is the general practice of those engaged in a similar activity. ... Evidence of general practice will be given more or less weight depending on the circumstances. There are no specific requirements to establish a generally approved practice. ... The burden of proving that a custom exists is on the person alleging, and “only in the rarest and most patently obvious cases will the Courts take judicial notice of a custom” [quoting Iacobucci, J. in Waldick v. Malcolm (1991), 1991 CanLII 71 (SCC), 8 C.C.L.T. (2d) 1 (S.C.C.), at p. 15]. Under the previous, but now discredited, theory that evidence of general and approved practice was conclusive proof that the defendant acted reasonably, it was of course important to have a fixed idea of what constituted general practice. Under the current, more realistic, approach that what others do is only a relevant factor in deciding what is reasonable, the weight of which varies depending on the circumstances, it is unnecessary to attempt to define the elements of a general practice with precision. ... It is almost universally conceded that evidence of general practice can never, as a matter of law, settle the negligence issue. Thus whether the evidence is that of the plaintiff, i.e., that the defendant failed to adhere to general practice, or of the defendant, i.e., that the defendant was adhering to general practice, the evidentiary effect is the same. This may raise an inference of negligence, or of reasonable care, or may in fact raise a prima facie case, but will not be conclusive proof.

Other Questions


What factors must be considered in determining whether a child is in the best interests of the children? (Nova Scotia, Canada)
What are the factors to consider before making a retroactive award? (Nova Scotia, Canada)
What is the impact of a finding that a class action is not the preferable procedure for bringing an individual action? (Nova Scotia, Canada)
What factors must be considered when applying the best interest principle to a request for shared parenting? (Nova Scotia, Canada)
What factors will be considered by the Court of Appeal in determining whether to exercise discretionary authority? (Nova Scotia, Canada)
What factors will the court consider in determining the burden of proof? (Nova Scotia, Canada)
Is a decision to reopen a hearing to consider or present further evidence a matter of procedure and practice? (Nova Scotia, Canada)
What factors will be considered in determining whether or not to disbursement of an expert’s report? (Nova Scotia, Canada)
Does the Attorney General have an obligation to strike each contested cause of action before, at or after the AGNS has made a certification motion? (Nova Scotia, Canada)
What factors will the court consider when applying the best interest principle to a request for shared parenting? (Nova Scotia, Canada)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.