A lawyer accused of launching a lawsuit against three judges without the consent of her client has had her licence to practise suspended by the Law Society of Upper Canada until the completion of her disciplinary hearing.
A law society panel found earlier this month that a failure to suspend Kimberly Townley-Smith’s licence would result in a “significant risk of harm to members of the public and to the public interest in the administration of justice.” Townley-Smith didn’t appear at the hearing.
The LSUC issued a notice of application for misconduct proceedings on May 26, more than a year after the first complaint against Townley-Smith for her behaviour during a copyright dispute with entertainment giant Warner Bros.
Townley-Smith’s client, Kim Baryluk, fronted the Manitoba folk group the Wyrd Sisters, a name Warner Bros. intended to use in its 2005 film Harry Potter and the Goblet of Fire. After the judge awarded $140,000 against
Baryluk, a suit launched against three judges involved in the case accused them of conspiracy and fraud.
That case resulted in a further $100,000 cost award shared between Baryluk and Townley-Smith. Baryluk has since sued Townley-Smith, accusing her of launching the action against the judges without her consent (see "Client sues counsel for suing judges"). None of the court or disciplinary allegations against her have been proven.
A number of judges, lawyers, and court staff, including Ontario Chief Justice Warren Winkler, have received memos from Townley-Smith notifying them that “criminal offences have, or may have, occurred in connection with the Wyrd Sisters matters.” Copies of some of the memos filed with the LSUC tribunals office end the same way:
“The entire history of these matters have been reported to the police. You have been identified as someone who has, or may have knowledge of, and/or has, or may have participated in one or more of the offences. Govern yourself accordingly.”
The law society’s factum alleged Townley-Smith was “ungovernable” and that her conduct repeatedly “demonstrated poor judgment that has caused harm to almost everyone unfortunate enough to have had a role in” the Wyrd Sisters actions.
“The administration of justice must be protected from becoming a platform and venue in which unfounded allegations of corruption and criminal conduct can be made against judicial officers and others or a series of baseless and abusive proceedings can be initiated and then manipulated by a lawyer, who appears to be driven not by her client but her own conspiracy theories,” the LSUC alleges.
According to the affidavit of law society investigation counsel Renae Oliphant, the first complaint came in March 2009 from Charles Scott, an opposing lawyer in the Warner Bros. action. Subsequently, the LSUC received complaints from Brian Shiller, Baryluk’s new lawyer, and Jonathan Stainsby, another opposing counsel.
Marc Monnin, chief justice of Manitoba’s Court of Queen’s Bench, complained on behalf of Justice Christopher Martin, who encountered Townley-Smith during an attempt by Warner Bros. to recover costs
in Manitoba (see "Lawyer ordered to pay costs for 'abusive' tactics").
Finally, Roslyn Levine, executive legal officer at the Superior Court of Justice, complained on behalf of justices Colin Campbell and John Wilkins along with Master Ronald Dash, the three judges previously involved in the Warner Bros. action.
In her letter, Levine said the action against the trio “had a profoundly negative personal impact on the judicial defendants. While the complaint and the action have both been dismissed, they have had the potential effect of tarring the reputations of some of the most respected judges of the Superior Court of Justice.”
According to Oliphant, Townley-Smith’s co-operation has been patchy. She appeared for an interview in June 2009 but allegedly refused to hand over her original client file.
“I got no reason to just go out one day and go, ‘Hmm, I know, I’m going to attack some judges,’” Townley-Smith allegedly said in the interview. “I have no history of that. I have never called anybody biased before. I have never had any reason to do that.”
The law society’s motion for an interlocutory suspension sparked a scramble to track down Townley-Smith, who just weeks before had allegedly indicated she would no longer co-operate with the investigation. In a letter dated May 14, she allegedly turned her sights on the investigation counsel, implicating them in her conspiracy theory.
“The law society has been misused in an attempt to extort information and documents from me to assist the government of Ontario and others in covering up corruption in the Ontario courts and elsewhere. I have advised of my intention to resign from the Law Society of Upper Canada, rendering any legitimate avenues for investigation into my practice (though there are none) moot.”
The law society says it made several attempts to serve documents at Townley-Smith’s home and last known business address.
It says it exhausted every phone and fax number and e-mail address on record for her without success. In an affidavit filed with the hearing, one server said a “young female student” turned him away at the door of Townley-Smith’s home address and told him “there was no one at the address by that name.”
Raj Anand, chairman of the disciplinary panel, eventually accepted that Townley-Smith had been served by delivery of the motion record to the receptionist at her office. In any case, he said they could dispense with service since it was “impractical.”
Law Times also couldn’t reach Townley-Smith for comment. The next date for the proceedings against her is scheduled for June 28.