Trial costs award need not be reduced in proportion to monetary success on appeal

Labour and Employment Law - Employment Law - Termination and Dismissal

Appeal. Employee was employer’s fund manager for 12.5 years under employment contract with $200,000 annual salary, bonus, and profit-sharing plan (CIP) . When employee was 58 years old, employer terminated employment without cause . Employer paid employee base annual salary of $200,000 for 13 months, $188,058 for bonus entitlement for notice period, employee benefits for over three years, and $5,434,309 for CIP entitlement . Trial judge allowed employee's action for wrongful dismissal and awarded employee total of $1,335,500 for notice period amounts, which included additional $83,333 for base salary, additional $98,692 for bonus, $953,392.50 for lost opportunity to earn entitlements under CIP during notice period, $190,789 for his share of investment proceeds under CIP during employment, calculated using employee’s foreign exchange methodology, professional dues and minor errors in calculations . Trial judge awarded costs in amount of $100,000 . Employer appealed . Appeal was allowed in respect of damages award of carried interest plan but appeal was dismissed in respect of award concerning foreign exchange methodology . Issue arose as to costs. Fair and reasonable award of costs was $80,000. Parties’ initial agreement on costs of action assessed on full success basis was accepted by trial judge . Success was divided. Only 25% of trial time dealt with carried interest plan issue . It did not follow that trial costs award should be reduced in proportion to monetary success on appeal.

Manastersky v. Royal Bank of Canada (2019), 2019 CarswellOnt 14381, 2019 ONCA 705, K. Feldman J.A., David Brown J.A., and B.W. Miller J.A. (Ont. C.A.); additional reasons (2019), 2019 CarswellOnt 11462, 2019 ONCA 609, K. Feldman J.A., David Brown J.A., and B.W. Miller J.A. (Ont. C.A.).

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