Case Law Review

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:

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.

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.

McCreight v Currie, 2008 BCSC 1751

This decision was cited in Milne above where the British Columbia Supreme Court allowed a plaintiff to recover the cost of financing that she incurred for obtaining an MRI.

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.