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Court Decisions
The following court decisions address the recoverability of financing costs by counsel and/or their clients where funds are used to pay for disbursements, and medical/treatment costs.
Cornie v. Security National (2012 ONSC 905)
The recent Ontario Superior Court of Justice decision, Cornie v. Security National speaks directly to the extended delays being experienced by injured individuals who are attempting to resolve disputes with their insurers over the funding of med/rehab services through the FSCO mediation process. This decision provides that a delay of more than 60 days will be viewed as a "failed" mediation enabling claimants to proceed to arbitration.
review decision »Herbert v. The City of Brantford (2011 ONSC 4066 (CanLII))
The Ontario Superior Court costs decision in Herbert v. The City of Brantford established that interest charged by experts on their outstanding reports was a recoverable cost, however Justice Whitten left it up to counsel to determine an "appropriate" rate of interest to be incurred. Defence counsel argued for post judgment interest while plaintiff's counsel argued that the actual rates charged by the various experts (ranging from 1.0% to 2.0% per month) were appropriate. The issue reverted back to Mr. Justice Whitten who rejected the defendant's argument and allowed the plaintiff to recover the full amount charged by its experts.
review decision »Herbert v. The City of Brantford (2010 ONSC C04-12047 (CanLII))
This Ontario Superior Court decision held that interest charged by various experts on their accounts was recoverable as an assessable cost against the defendant. This decision builds upon those of Bourgouin and McCreight in recognizing that the onerous costs borne by plaintiffs and their counsel in pursuing a claim could deter access to justice where the costs incurred - including financing charges - are not recoverable.
review decision »Milne v. Clarke, [2010] BCSC 317
The British Columbia Supreme Court provided wide discretion to allow counsel to recover the financing cost incurred for disbursements due to the failure or inability of a party to pay for the cost of the service.
review decision »Bourgouin v. Ouellette, [2009] CanLII 27242
The New Brunswick Court of Queen's Bench held that interest charged on a disbursement loan was recoverable by the plaintiff where the funding arrangement is directly between the plaintiff and a third party financier. The court referred to the Rules of Civil Procedure but seemed to rely on the broader social policy objective of access to justice to allow full recovery of the expense.
review decision »McCreight v. Currie, 2008 BCSC 1751
This decision was cited in Milne v.Clark (above) where the British Columbia Supreme Court allowed a plaintiff to recover the cost of financing that she incurred for obtaining an MRI.
review decision »Sorokin v The Wawanesa Mutual Insurance Company, (2008) 92 O.R. (3d) 314
This decision by the Ontario Superior Court of Justice held that interest is a benefit and not a penalty under the Statutory Accident Benefits Schedule of the Insurance Act (Ontario). This lends authoritative support for the proposition that costs incurred to finance the cost of benefits that have been improperly terminated/denied or exhausted are recoverable against the first party or tort insurer.
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