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Lawyer ordered to pay costs for ‘abusive’ tactics

|Written By Michael McKiernan

A Toronto lawyer has been ordered to pay Warner Bros. almost $13,000 in costs for what a Manitoba judge called her “obstructive and high-handed approach” to litigation against the entertainment powerhouse.

The latest order is the second such ruling against Kimberly Townley-Smith. Last year, an Ontario judge held her personally liable for $50,000 in costs for her actions in a client’s lawsuit making conspiracy allegations against three judges.

Townley-Smith, a copyright lawyer based in Toronto, represented Winnipeg folk group the Wyrd Sisters in their 2005 lawsuit launched in Ontario against Warner Bros. They attempted to stop distribution of the film Harry Potter and the Goblet of Fire because it featured a band called the Weird Sisters.

That action ultimately ended in defeat and a $140,000 costs award in favour of Warner Bros. Because singer Kim Baryluk, the principal of the Wyrd Sisters, lives in Winnipeg and has assets in Manitoba, Warner Bros. initiated proceedings to collect the judgment there, where Court of Queen’s Bench Justice Christopher Martin heard the matter.

“It would not be an overstatement to describe Ms. Townley-Smith’s litigation tactics in Manitoba as generally obstructive, threatening, contemptuous, abusive, and largely without substance,” he wrote in a 14-page ruling on costs. “Essentially, Ms. Townley-Smith’s conduct, as a lawyer and officer of the court, was deplorable.”

Townley-Smith couldn’t be reached for comment, while James Mercury, counsel for Warner Bros. in the matter, said neither he nor his client would be speaking publicly about the award.

The costs award relates directly to a subpoena brought by Townley-Smith to cross-examine Warner Bros.’ lead counsel in Manitoba over its efforts to collect the costs for the previous judgment.

“She had already done the same thing to Warner Bros.’ lead counsel in Ontario, resulting in a 369-page transcript largely of meandering, immaterial, and irrelevant questions and answers,” Martin wrote.

Warner Bros. moved to have the subpoena quashed, but the day before the hearing was due to take place in May 2009, Townley-Smith withdrew it and said the motion was rendered moot, according to the judgment.

“Despite vague explanations to the contrary, its frivolousness was demonstrated by withdrawing the subpoena the evening before the motion to quash was to be heard,” Martin wrote.

“Considerable time, effort, and expense were wasted with this tactic. It was an abuse of process.”

Last summer, the Wyrd Sisters switched lawyers and opted to settle all outstanding litigation. As part of the agreement, Warner Bros. agreed not to pursue costs for the most recent motions against the Wyrd Sisters, but both sides decided the company could take action against Townley-Smith.

A hearing on costs was to take place in early September, but Townley-Smith told the judge she wouldn’t be able to attend due to a medical condition.

She also alleged the judge was biased and said he should recuse himself, according to Martin’s ruling. The matter was adjourned until late November to give Townley-Smith time to recover from her condition, but she wrote days before the hearing to say she still wasn’t ready.

Further letters to Martin accused him of conspiring against her and informed him she had reported him to the police for alleged criminal offences.

“Ms. Townley-Smith’s conduct throughout the Manitoba proceedings, especially since the motion in May 2009 and increasingly since being discharged as counsel for The Wyrd Sisters, has deteriorated to the point that her competence is a serious concern,” Martin wrote, noting Townley-Smith ultimately refused to participate in the hearing.

He awarded total costs of $31,800 but found Townley-Smith liable for only 40 per cent of that amount. He said the Wyrd Sisters bore at least half the blame because they encouraged or “at the very least they acquiesced” to her actions.

It’s not the first time Townley-Smith has found herself the subject of a withering attack from the bench.

After losing the initial case in Ontario, the Wyrd Sisters - with Townley-Smith acting as their lawyer - launched a $20-million claim against three judges involved: Superior Court justices Colin Campbell and John Wilkins along with Master Ronald Dash.

It accused them of conspiracy, fraud, misrepresentation, abuse of process, and abuse of public office.

In his October 2008 judgment in the conspiracy case, Superior Court Justice Charles Hackland called the allegations a “scurrilous attack” on the administration of justice from a member of the bar.

“It is, of course, counsel’s obligation to represent her client fearlessly, resolutely, and honourably, but proceedings must not be brought for an improper purpose, and counsel must refrain from advancing her personal opinions or giving evidence,” he wrote.

“I am concerned that counsel has failed to discharge these obligations as an officer of the court.”

Hackland, too, found himself the subject of a motion by Townley-Smith to recuse himself at a later hearing for costs in the same matter. The motion accused him of altering court transcripts.

“Ms. Townley-Smith’s basis for making this scandalous allegation is that her personal recollection of one exchange between her and the court differs somewhat from the text of the transcript,” Hackland wrote last July, finding Townley-Smith personally liable for more than $50,000 in costs to the three judges who were defendants in the case.

Hackland called the action a clear abuse of process that could never have succeeded due to the absolute immunity afforded to judicial officers in the performance of their work.

To view Hackland's judgment, see Baryluk (Wyrd Sisters) v. Campbell.

  • PC
    Obviously, there is more to this story,not having heard from the complaining solicitor-mental illness perhaps. Having said that the Judges and other officials and the LSUC may wish to begin to appreciate the effect upon a solicitor when a complaint, without merit on its face, is made by a disgruntled client, and we, the members of the bar, are put to the time, expense and aggravation of attempting to rebut the accusations, the onus being upon the solicitor to satisfy the LSUC that no wrong doing has occurred, with no costs or other consequences to be suffered by the complaining client when proved to be abusive at best!! Perhaps the Benchers will reconsider the approach to complaints, with the client being compelled to put up a sum of money representative of the time and expense to be incurred by the solicitor in defending a frivolous/abusive accusation. At least in this case, being before the courts, a remedy allows for the award of costs vs.the solicitor for abuse of process.
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