



COURT OF APPEAL FOR ONTARIO

CITATION: Manastersky v. Royal Bank of Canada, 2019 ONCA 705

DATE: 20190909

DOCKET: C65121

Feldman, Brown and Miller JJ.A.

BETWEEN

James Anthony Manastersky

Plaintiff (Respondent)

and

Royal Bank of Canada and
RBC
    Dominion Securities Inc.

Defendant (
Appellant
)

Jeremy Devereux and Geoff Mens, for the appellant

Nancy Shapiro, for the respondent

Heard: February 19, 2019

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.


