The Court of Appeal released two important decisions today that clarify when and how a judge should exercise their discretion to part from the presumption under the Courts of Justice act and the Rules of Civil Procedure. The full decisions are worth reading. Long story short, we should not be arguing for changes in the presumptive rates unless there are unusual or special circumstances.
The Court said, “the prescribed interest rates should not be deviated from as a matter of course but rather where the court determines that there are unusual or special circumstances sufficient to justify such a departure, having regard to the mandatory criteria under s. 130(2) of the CJA and all other relevant considerations.” Henry v. Zaitlin
It also said, “I am not persuaded by the respondents’ submission that this court has held that the rates under ss. 127 and 128 of the CJA are determinative or indicative of the meaning of “market interest rates” under s. 130(2)(a) of the CJA. I do not read this court’s decision in Tuffnail as supporting the respondents’ proposed interpretation.” Aubin v. Synagogue and Jewish Community Centre of Ottawa.
