Alberta

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Like Ontario, the Alberta Court of Appeal has not weighed in on this issue. The reported lower court show a reluctance to award interest as a disbursement where the facts do not justify it.

Smolzer v. Higenbottam, 2009 ABQB 616

In a short cost decision, the Court of Queen’s Bench of Alberta declined to award interest on expert witness fees and disbursements, noting that “the facts of Bourgoin v. Ouellette [2009] N.B.J. No. 164 are distinguishable” and that in the present case there was not a “strong access to justice issue that would warrant an exceptional award of interest on disbursements”.36 This case implies that if there was a strong access to justice issue for a Plaintiff then interest may be recoverable as a disbursement.

Do v. Sheffer, 2010 ABQB 422

The Plaintiff sought to recover interest in the amount of $2,720.00 on a loan of $30,000.00 from a litigation funding company. He argued he was practically impecunious at the time of trial and had to borrow money in order to pay for his disbursements for the purposes of the trial. The Court declined to allow the interest recovery, noting only that there was no precedent in Albert that would allow this type of disbursement.

However, in this case, there was “also little or no evidence” before the court with respect to the “appropriateness or necessity of the loan”. The Plaintiff had purchased a new motor vehicle during the litigation and the Court noted that it was not likely he was impecunious throughout the litigation. Also in this matter, interest components had already been added to various heads of damages awarded in favour of the Plaintiff, particularly for “Past Loss of Income” and held that litigation loan interest would represent double compensation. Also, the Court opined, without analysis that “the Rules of Court do not contemplate this type of disbursement”. 37

321665 Alberta Ltd. v. ExxonMobil Canada Ltd., 2012 ABQB 76

The Plaintiff in this action based on the Competition Act R.S.C. 1985 c. C-34, sought recovery of interest incurred on a litigation loan. The Plaintiff argued that as it was put out of business by the action of the Defendants it should be allowed to claim the cost of money borrowed to finance the litigation. Without any analysis the Court simply stated “In Davidson v. Patten 2005 ABQB 521 at para. 51 and Do v Sheffer at para.16 it was held that these types of expenses are not recoverable”. The Court dismissed the claim for litigation loan expenses without further reasons. In Davidson v. Patten there was no mention of any litigation loan taken out by the Plaintiff and the Court did not provide any analysis of the issue either, simply stating that:

Interest to finance a litigant’s expenses during a suit is not recoverable as party and party costs. . . However, interest is awarded on costs from the date when a party becomes entitled to them. The Plaintiff will have interest on costs, at the post-judgement interest rate, from the date of judgement to the date costs are paid. 38

Without analysis or information on any litigation loan taken out by the Plaintiff in Davidson it is hard to understand on what basis the Court determined that it was not a recoverable expense, or why the Court in 321665 Alberta Ltd. v. ExxonMobil Canada Ltd. found Davidson to be persuasive authority.

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