Court of Appeal for Ontario

Date: 2019-09-09

Docket: C65121

Judges: Feldman, Brown and Miller JJ.A.

Between

James Anthony Manastersky Plaintiff (Respondent)

and

Royal Bank of Canada and RBC Dominion Securities Inc. Defendant (Appellant)

Counsel

Jeremy Devereux and Geoff Mens, for the appellant

Nancy Shapiro, for the respondent

Heard

February 19, 2019

On Appeal

On appeal from the judgment of Justice Patrick J. Monahan of the Superior Court of Justice, dated February 14, 2018, with reasons reported at 2018 ONSC 966.

Costs Endorsement

BROWN J.A.:

[1] In reasons released July 18, 2019, this court unanimously dismissed the appeal of RBC Dominion Securities Inc. ("RBCDS") in respect of the award concerning the foreign exchange methodology; a majority of the court allowed the appeal in respect of the award of damages in respect of the carried interest plan. As a result, the principal amount of the trial judgment was reduced from $1,144,181.50 ($953,392.50 + $190,789) to $190,789.

[2] Based on the agreement of the parties, the trial judge had awarded Mr. Manastersky his costs of the action in the amount of $100,000. The parties have been unable to agree on the treatment of that costs award in light of the disposition of the appeal.

[3] In its written cost submissions, RBCDS argues that the award of the costs below should be reduced to $40,000. Mr. Manastersky submits that award should remain the same or, alternatively, be reduced to no less than $75,000.

[4] When the costs below are considered in light of the general principles governing the fixing of trial costs, I am persuaded that some reduction in the award should be made. When a party succeeds on appeal, that success ordinarily must be imputed as success at trial: Eastern Power Limited v. Ontario Electricity Financial Corporation, 2012 ONCA 366, at para. 16. However, it does not follow that the trial costs award should be reduced in proportion to the monetary success on appeal. More is involved when assessing costs.

[5] As Mr. Manastersky points out in his written costs submissions, he succeeded on four main issues at trial. No appeal was taken by RBCDS on two of the issues. In respect of the two issues on appeal, success was divided. However, only about 25% of the trial time dealt with the carried interest plan issue and only one of the four witnesses called by RBCDS addressed that issue. Given those circumstances and the parties' initial agreement on the costs of the action assessed on a "full success" basis, which was accepted by the trial judge, I conclude that a fair and reasonable award of costs for the action below would be $80,000. I would so vary the judgment below.

"David Brown J.A."

"I agree. K. Feldman J.A."

"I agree. B. W. Miller J.A."