Section 45 of the Judicature Act, supra, confers a discretion on a trial judge to compensate the loss of use of money from the date of an accident until the award is made: John Maryon International Ltd v. New Brunswick Telephone Co. (1982), 43 NBR (2d) 469 paras 63-66 & 125 (CA). In LeClerc v. Sunbury Transport Ltd (1996), 184 NBR (2d) 1 paras 46-47, the New Brunswick Court of Appeal defined broadly that power:
 An award of interest involves the exercise of judicial discretion. Section 45(1) of the Act, enables a judge to select and apply an interest rate to all or part of the damage award for any period of time between when the cause of action arose and the date of the judgment. In many cases that discretion is exercised without accompanying reasons.
 The purpose of awarding prejudgment interest is to put the claimant in a position that eliminates loss so far as money can produce the result. This court will only interfere with a trial judge’s exercise of discretion, when awarding interest, if there has been an obvious error.
See also M.R. v. G.M., 2016 NBCA 33 paras 8-9 & 13-14. Compared to the legislative provisions found in other provinces, New Brunswick’s judicial discretion is free from all kinds of encumbrances, limitations and restrictions: see M.B. v. British Columbia, 2003 SCC 53 paras 44-51 (Court Order Interest Act, RSBC 1996, c. 79); Mann v. Jefferson, 2019 ONSC 422 para 43 (Courts of Justice Act, RSO 1990, c. C-43, ss. 127-128).
In Matthews v. McIntyre, 2019 NBQB 127, the trial judge was faced with the situation of a plaintiff who had incurred high-interest loans in part to cover the medical expenses associated with her injuries. In his award of special damages, he calculated the medical expenses incurred between the date of the end of the claimant’s Section B medical coverage and the date of the trial. When selecting and applying an interest rate pursuant to s. 45 of the Judicature Act, supra, he considered the interest rate paid on the high-interest loans and chose a rate at half its value, amounting to about 16% yearly. That interest rate was in stark contrast to the 2% yearly applied to the other special damages. Thus, although the presiding justice did not award the full amount of interest paid on the loan, he chose a rate informed by the high-interest loans. That decision was upheld by a unanimous bench of the New Brunswick Court of Appeal: 2020 NBCA 52 paras 38-50. It is worth mentioning that the appeal court emphasized that the medical expenses were found to be reasonable, and the plaintiff had limited financial means to cover the added expenditures (paras 43-44).
Most cases have dealt with interest when money is owed and not paid (i.e. negative), while Matthews v. McIntyre, supra, deal with interest in a case where specific expenses are incurred (i.e. positive). Where such expenditures are engaged as a result of the accident and a claimant had to borrow funds to cover them, the New Brunswick Court of Appeal confirmed that a trial judge is justified to look at the rate of interest charged on the loan to set the rate of interest pursuant to s. 45 of the Judicature Act, supra.
In light of Justice Richard’s decision in Stamper v. Finnigan (1986), 75 NBR (2d) 301 (QB), this approach to interest may be of particular value when the policy limit is insufficient to cover the entire loss. Although overturned on other grounds [(1987), 81 NBR (2d) 213 (CA)], and not followed in other jurisdictions, Justice Richard held that insurers are liable up to the value of the policy limit plus applicable pre-judgment interest pursuant to s. 45 of the Judicature Act, supra. As in Stamper, supra, ss. 243(1) and (3) of the Insurance Act, RSNB 1973, c. I-12, remain unchanged in this respect, and the minimal policy limit of $200k is “exclusive of interest and costs”. Depending on the applicable rate of interest, the policy limit would obviously expand accordingly.