Exercising Discretion

Triten Corp. of Canada v. Borden & Elliot, 1998 CanLII 18858 (ON SC)

On the issue of prejudgment interest, Triten was awarded an interest rate of 7 per cent rather than the presumptive rate of 13.9 per cent calculated pursuant to s. 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Triten submits the arbitrator committed an error in law when he awarded prejudgment interest at the average Bank of Canada prime rate in that he did not take into account the criteria set out in s. 130(2) of the Courts of Justice Act.

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A successful plaintiff has a prima facie right to prejudgment interest at the presumptive rate. Before a court can depart from the presumptive rate, s. 130(2) of the Courts of Justice Act requires that specific factors be taken into account. In this case, those factors were not taken into account. Had they been considered, they would have substantially favoured no departure from the presumptive rate. In my view, the arbitrator's failure to consider the criteria enumerated in s. 130(2) amounts to an error in law. I therefore allow the plaintiffs' appeal.