Kelly P. Hart

Kelly Hart and Ellie Nekiar successfully defended a store owner against allegations of assault, battery, and wrongful imprisonment in a three week trial. The jury found against the Plaintiff and the claim was dismissed in its entirety.

Within the trial, Kelly and Ellie successfully defended a motion in which the Plaintiff sought to exclude all of the Defendants’ surveillance evidence. Justice S. Corthorn ordered that the Defendants were entitled to use significant portions of the surveillance at trial. 

Kelly Hart represented the Defendant succeeding both on a cross-motion and in dismissing the Plaintiff’s motion.  The Plaintiff sought to use the evidence of his former solicitor alone in support of his motion to proceed with the action under a pseudonym. This affidavit was struck and the court found that even if the affidavit has remained, on the evidence presented, he would not have been able to properly consider the required factors for allowing a case to proceed with a party assuming a pseudonym. 

Kelly Hart successfully represented the Plaintiff at trial, followed by a dismissal of the Defendant’s appeal to the Divisional Court. The Plaintiff was awarded damages and costs for vandalism losses sustained to his vehicle while under the care and control of the Defendant.

Eric Williams and Kelly Hart successfully defended a solicitor at trial involving a scope of retainer dispute. The court confirmed that any duty to a client is limited to the scope of the retainer. A “limited retainer” describes circumstances such as where a solicitor is conducting a real estate transaction without search of title and advises the client that the work being done is less than usual.

This is differentiated from this case where the solicitor was retained for a disability claim and advised the client orally of other potential claims. While the solicitor orally confirmed his non-retainer on the other claims, he did not put this in explicitly in writing. This was not a case of limited retainer, and the failure to send a letter of non-retainer was not a breach of the standard of care. The trial decision was upheld at the Court of Appeal.

Kelly Hart successfully represented the non-profit Abiwin Co-Operative in the Federal Court of Canada where it was held that a previous settlement between the Co-Op and one of its members precluded her from raising the same complaint in a new forum.

Kelly Hart successfully defended at trial the Township of Champlain against allegations of negligent building inspection stemming from work undertaken 20 years earlier.

Eric Williams and Kelly Hart successfully represented a contractor, Castonguay, in a motion seeking to dismiss Castonguay’s third party claim against its engineer, Zenix, who argued that the claim ought to be precluded on the basis that if Castonguay had obtained the insurance required by way of its contract with the owner (Plaintiff), Zenix would have been a beneficiary of that insurance. 

The Court found that even if Castonguay had obtained the insurance, it was not was not plain or obvious that a claim for contribution or indemnity by Castonguay related to the services of Zenix would be precluded. Zenix was not afforded the benefit of the covenant to insure as it was not party to that agreement nor was it obvious that the parties to the contract intended to extend the benefits of insurance coverage to the losses involved. The motion to dismiss the claim as frivolous or vexatious was denied.