C.A. Strikes Down Award of Compound Interest on Fee Charged by Opposing Party’s Expert

In Herbert v. Brantford (City), the Court of Appeal disallowed interest at one and two percent, compounded monthly, that had been awarded in relation to fees charged by the plaintiffs’ expert witnesses in a personal injury case. The Court said that the evidence in the case did not support “this exceptional order”.

In the trial decision (Herbert v Brantford (City), 2011 ONSC 4066 (CanLII)), Justice Alan C.R. Whitten had characterized the issue as one of “access to justice”, saying that the experts’ accounts dated back to 2007 and totalled about $42,000. He said that “It would have been difficult, if not impossible for the Muir’s [the plaintiffs] to address this indebtedness as the litigation evolved.”

He did acknowledge that awarding interest compounded monthly was “at first blush attention-getting”, but drew comfort from the compound interest provisions of the Statutory Accident Benefits Schedule. However, the Court of Appeal said that the reference to the SABS “is of no help in this argument”.

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