Executive Summary: Key Legal and Evidentiary Issues

• Admissibility and weight of specific affidavit paragraphs, including arguments about opinion, argument, and relevance.

• Existence and enforceability of a notice requirement for resignation in the absence of a written agreement.

• Defendants’ entitlement to set-off for alleged losses due to lack of notice and Plaintiff’s alleged failure to mitigate by refusing e-transfers.

• Responsibility for accounting and payment of fees earned by the Plaintiff as an independent contractor.

• Determination of personal liability of Dr. Kashin versus liability of the management corporation.

• Plaintiff’s entitlement to interest and costs on unpaid fees.

Facts of the case

Dr. Marcella Mansaray (“Dr. Mansaray”) provided optometrist services as an independent contractor for Dr. Robert Kashin (“Dr. Kashin”) and Robert S. Kashin Optical Ltd., operating as KOG Eyecare (“KOG”). Over time, Dr. Mansaray experienced increasing delays and inaccuracies in the payment and accounting for her services. By 2023, she deposed that payments were often incorrect and rarely accompanied by a reconciliation to support amounts paid. When she finally received an accounting in December 2023 for all amounts earned between January and November of that year, she identified errors and did not receive payment for amounts due at that time. Upon raising concerns about errors and missing reconciliations, Dr. Kashin attributed the problems to short staffing issues. Dr. Mansaray offered to accept monthly payments rather than every two weeks, which Dr. Kashin disputed. Dr. Kashin did not explain why he was unable to reconcile payments over 11 months, nor did he dispute that payments were late and that there was no agreed accounting, even in the two years since Dr. Mansaray’s resignation, until days prior to the hearing.

Summary judgment application and preliminary issues

The issues set out in Dr. Mansaray’s Statement of Claim were determined by way of summary judgment. The Defendants’ counterclaim was set for trial and not dealt with in this decision. Preliminary matters included the Plaintiff’s consent to proposed amendments to the Defendants’ counterclaim and the Defendants’ objections to certain paragraphs of the Plaintiff’s affidavits. The Court found that most of the challenged evidence was admissible, though some paragraphs were given limited or no weight due to their argumentative or general nature.

Disputed amounts and set-off claims

The Defendants conceded that $36,637.50 was due to Dr. Mansaray for services provided, subject to reduction for set-offs. The set-offs claimed were for loss suffered as a result of the Plaintiff’s alleged failure to give required or appropriate notice of resignation, and for failure to mitigate loss by not accepting all e-transfers. The specific amount of unaccepted e-transfers was disputed, with the Plaintiff asserting $8,205.49 and the Defendants asserting $12,078.82.

Notice requirement and contractual obligations

The Defendants acknowledged there was no written agreement as to any required notice of resignation but asserted that notice was a term of their agreement. No evidence was led by the Defendants as to any specific discussion relating to notice or the specific terms of the purported agreement. The Court accepted the Plaintiff’s position that no requirement for notice or specified notice period had been agreed upon. The Court also agreed that even if such a notice requirement had existed, it would have been negated by the Defendants’ breach of their contractual obligations to pay the Plaintiff for services rendered prior to her resignation.

Mitigation and acceptance of payments

The Defendants argued that Dr. Mansaray failed to mitigate her loss by refusing to accept e-transfers from the Defendants in the total amount of approximately $12,078.82. The Plaintiff argued that declining to accept e-transfers that were not properly reconciled or that she felt were incorrect does not extinguish the debt owed to her. The Court found that there was no basis for finding that the Plaintiff’s refusal to accept amounts she believed were incorrect, or which were not accompanied by supporting reconciliations, was unreasonable. The Court concluded that there was no failure of an obligation to mitigate and no basis upon which to reduce the amount due to the Plaintiff.

Interest and costs

The Plaintiff sought interest from the point at which the fees had been earned to the date of judgment. The Defendants argued that the Plaintiff’s choice not to accept payments should prevent her from collecting interest on amounts she could have received earlier. The Court found that the Plaintiff’s reluctance to accept partial payments was not unreasonable in the circumstances and awarded interest as requested in the Statement of Claim on all unpaid amounts. The judgment will also bear post-judgment interest at the Court of King’s Bench rate. The Plaintiff is entitled to the costs of her successful claim, with further submissions on costs permitted if the parties cannot agree.

Personal liability of Dr. Kashin

The Plaintiff claimed against both Dr. Kashin personally and his management corporation. The Court found that the contract entered into in 2019 was between Dr. Kashin and Dr. Mansaray in their professional capacities as optometrists, with KOG involved for management services. There was no evidence that Dr. Mansaray was ever advised, or ever agreed to, contract solely with the management company, or that Dr. Kashin ever indicated to her that he was acting solely in his capacity as an agent of Robert S. Kashin Optical Ltd. The Court found both Defendants jointly and severally liable to the Plaintiff in the amount of $36,637.50, plus interest.

Ruling and outcome

The Court awarded Dr. Mansaray the amount of $36,637.50, plus interest and costs. Both Dr. Kashin and Robert S. Kashin Optical Ltd. (KOG Eyecare) were held jointly and severally liable. If the parties are unable to agree upon costs, they may file written submissions or set time for further oral submissions. The Defendants’ counterclaim and the issue of whether an email constitutes defamation will be addressed at trial. The principal amount awarded to the successful party, Dr. Mansaray, is $36,637.50.