Currently, in Canada, the case law varies from province to province on whether or not interest incurred from a litigation loan can be recovered by a successful Plaintiff. With the Supreme Court of Canada recently denying leave to appeal from a British Columbia Court of Appeal decision on this issue, it will likely remain that way for now.
The New Brunswick Court of Appeal has concluded that interest incurred on a litigation loan is a proper disbursement under the relevant legislation in that province and can be recovered under a costs award. This decision is binding on all of the lower courts in that province. While it is not binding on courts in other provinces, it can be persuasive authority.
To date, the Ontario Court of Appeal has not weighed in directly on this issue, either way. Therefore, it is unclear where the courts stand on this issue in Ontario; however, a recent lower court decision shows a movement closer to British Columbia’s stance of non-recovery rather than New Brunswick’s.
While there are previous decisions in British Columbia which awarded interest on litigation loans as a disbursement, they are no longer “good” law after the recent British Columbia Court of Appeal decision in Mackenzie v. Rogalsky which reflects the law as it currently stands in that province: