Client sues counsel for suing judges

A Toronto lawyer who was reprimanded by judges in Ontario and Manitoba for her “high-handed” litigation tactics and “scurrilous” attacks on the administration of justice is now the subject of a malpractice suit brought by her former client.

In a statement of claim currently before the court, Kim Baryluk, a Winnipeg folk singer, seeks general damages against copyright lawyer Kimberly Townley-Smith for negligence, breach of contract, breach of trust, and breach of fiduciary duty totalling $1 million.

The case came at about the same time an Ontario court ordered Townley-Smith to pay $50,000 in costs following a failed attempt to sue three Superior Court judges for $20 million on Baryluk’s behalf. (see "Lawyer ordered to pay costs for 'abusive' tactics").

Baryluk claims Townley-Smith launched actions without her consent and left her facing “financial ruin” despite repeated warnings that she “could not afford protracted litigation and did not want to be exposed financially.”

Baryluk says she now suffers from depression, anxiety, and sleeplessness as a result of Townley-Smith’s alleged actions and also seeks a further $1 million in punitive and special damages. None of the allegations have been proven in court.

“The actions of the defendant were callous, high-handed, reckless, and showed a total lack of regard for the interests and well-being of the plaintiff,” the statement of claim alleges.
Townley-Smith couldn’t be reached for comment, but in her statement of defence, she said she always acted on her client’s instructions.

“At every juncture, Ms. Baryluk chose to go on,” Townley-Smith wrote, noting her client was “well aware that any further legal action ran the risk of further costs being assessed against her. . . . As Ms. Baryluk said herself, ‘Bankruptcy is bankruptcy, I have nothing else to lose.’”

Baryluk originally retained Townley-Smith in late 2005 to fight the release of Harry Potter and the Goblet of Fire after distributor Warner Bros. revealed a band with a similar name to her group, the Wyrd Sisters, would appear in the film.

A failed motion for an injunction resulted in a $140,000 costs judgment against Baryluk, at which point she alleges Townley-Smith began acting without her informed consent. According to the statement of claim, Townley-Smith should have moved the matter towards trial or settlement after the injunction failed.

“Instead, it was the defendant’s view that Warner Bros., their lawyers, virtually every judge involved in the Warner Bros. action, a master, and numerous court staff, both in the Ontario Superior Court of Justice and Court of Appeal for Ontario, entered into a vast conspiracy that spanned a four-year period and continues to this day,” Baryluk claims.

The allegations go on to paint a picture of a woman on a mission to file motions and write letters, leaving behind a trail of losses and costs awards against Baryluk that, in some cases, were shared by Townley-Smith.   
At one stage, according to the statement of claim, Warner Bros. was forced to retain outside counsel when contempt proceedings were brought against the entertainment giant and its in-house and litigation counsel for allegedly perjured testimony. When Townley-Smith made the same allegation against its new counsel, Warner Bros. was forced to retain another lawyer.

Events culminated in a $20-million claim against three judges involved in the case, accusing them of conspiracy and fraud. According to her statement of claim, Baryluk never approved of the action.

“In fact, the plaintiff was unaware that an actual lawsuit had been launched until it had already been dismissed by the court,” the claim alleges. “The plaintiff learned about the lawsuit and its dismissal on the Internet.”

Townley-Smith refuted that claim in her statement of defence, saying Baryluk “not only knew of the action against Justice [Colin] Campbell and others, she gave Ms. Townley-Smith specific instructions to ‘sue the fuckers.’”

The suit was eventually dismissed by Justice Charles Hackland, who called the allegations a “scurrilous attack” on the administration of justice. He eventually awarded more than $100,000 in costs against Baryluk, with half to be paid by Townley-Smith.

Large portions of Townley-Smith’s statement of defence were struck in March this year by Justice Edward Belobaba after a motion by Baryluk’s new lawyer, Brian Shiller of Ruby & Shiller, because it repeated accusations she made against the judicial system in the earlier case.

In one passage that was struck out, she claimed the Ontario government has been “orchestrating the coverup of judicial corruption in the Ontario Superior Court of Justice since at least May 2008.”

“The various references in the defendant’s pleadings to the ongoing coverup of ‘judicial corruption’ or ‘corruption in the court’ are, in essence, a relitigation of the ‘conspiracy/corruption’ issues that were decided by Justice Hackland in 2008 and constitute an abuse of process,” Belobaba wrote in his decision on the motion.

More than 20 paragraphs were removed from Townley-Smith’s defence and her entire counterclaim seeking $1 million in general damages and more than $500,000 in fees when she failed to provide material facts for her claims.  “As a litigator, she should know better,” Belobaba wrote.

Baryluk parted from Townley-Smith last June and quickly settled with Warner Bros. In her statement of claim, she said she was manipulated into remaining with Townley-Smith.

“She was in a vulnerable position because she was held at financial gunpoint by the defendant who threatened to invoice her hundreds of thousands of dollars if the plaintiff ever terminated her services,” according to the claim against Townley-Smith.

The claim also quoted a letter allegedly written by Townley-Smith after the termination claiming Baryluk was “seeking to screw me by settling with Warner Bros. without me.” The letter allegedly went on to say that “I hope you can live with the betrayal” and informed Baryluk that she owed more than $450,000 in fees and disbursements.

In her defence, Townley-Smith admitted writing the letter but called it a “regrettable and informal” expression of how deeply hurt she felt.

The pair had no written retainer agreement, but Townley-Smith says they both agreed she would keep track of her time and, if they achieved a successful settlement, she would receive compensation in full on a modest premium.

If Baryluk wanted out at any time, all she had to do was ask, according to the defence, and Townley-Smith would “agree to cap her fees at a reasonable amount and give Ms. Baryluk as long as she needed to pay.” 

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