Fourth, the trial judge did not improperly allow evidence of
surrounding circumstances and the parties’ subjective intentions
to rewrite the words of the Mezzanine CIP. The evidence was clear:
the Mezzanine CIP was silent on the issue of the appropriate
foreign exchange methodology. Simply put, there was no contractual term to rewrite.
 Finally, the trial judge’s conclusion that it was not fair
or appropriate for RBCDS, after the fact, to seek to apply
a methodology that had the effect of exposing participants to
significant foreign exchange risk was firmly supported by the
evidence. The Mezzanine CIP was silent on the issue of
the applicable foreign exchange methodology. Consequently, by
imposing the “exit rate” methodology on the calculation
of payments to Mr. Manastersky in respect of Funds 1 and 2,
RBCDS in effect was amending the CIP in a material way, as
well as departing from the methodology it had used in making
payments out under the 2000 Plan. Article 9.2.1 of the Mezzanine CIP required the written consent of a participant to any
change that “may materially and adversely affect the determination of any amount to be paid to any Participant in respect
of any Investment Period which has already commenced”.
Mr. Manastersky did not consent to using the “exit rate”
methodology. Consequently, the trial judge’s conclusion on this
point found firm support in the language of the Mezzanine CIP.
 For these reasons, I would not give effect to this ground of
 For the reasons set out above, I would allow the appeal in
part and set aside para. 5 of the judgment. I would dismiss the
appeal in respect of para. 6 of the judgment.
 The parties agreed that the successful party should be
awarded costs of the appeal in the amount of $23,000. In the
event success was split, they agreed that amount should be
reduced but in a way that would reflect that the parties had put
a greater amount of work into the first ground of appeal.
Accordingly, I would award RBCDS its costs of the appeal fixed
at $15,000, inclusive of disbursements and applicable taxes.
 If the parties are unable to agree on the costs of the trial in
light of the disposition of the appeal, they each may file costs
submissions not exceeding three pages in length no later than
August 9, 2019.