Law Times

PAGE 2 NEWS may 17, 2010 • Law Times Lawyer ordered to pay costs for 'abusive' tactics Ruling marks second time Kimberly Townley-Smith held personally liable by judge BY MICHAEL McKIERNAN Law Times in costs for what a Manitoba judge called her "obstructive and high-handed approach" to litigation against the entertain- ment powerhouse. Th e latest order is the second A 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 mak- ing conspiracy allegations against three judges. Townley-Smith, a copyright lawyer based in Toronto, repre- sented Winnipeg folk group the Wyrd Sisters in their 2005 law- suit launched in Ontario against Warner Bros. Th ey attempted to stop distribution of the fi lm Harry Potter and the Goblet of Fire because it featured a band Toronto lawyer has been ordered to pay Warner Bros. almost $13,000 called the Weird Sisters. Th at 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. ini- tiated proceedings to collect the judgment there, where Court of Queen's Bench Justice Christo- pher Martin heard the matter. "It would not be an overstatement to describe Ms. Town- ley-Smith's litigation tactics in Manitoba as generally obstruc- tive, threatening, contemptu- ous, abusive, and largely without substance," he wrote in a 14-page ruling on costs. "Essentially, Ms. Townley-Smith's conduct, as a lawyer and offi cer 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. Th e costs award relates directly to a subpoena brought by Town- ley-Smith to cross-examine War- ner Bros.' lead counsel in Mani- toba over its eff orts to collect the costs for the previous judgment. "She had already done the according to the judgment. "Despite vague explanations I am concerned that counsel has failed to discharge these obligations as an offi cer of the court. same thing to Warner Bros.' lead counsel in Ontario, resulting in a 369-page transcript largely of meandering, immaterial, and ir- relevant 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, Town- ley-Smith withdrew it and said the motion was rendered moot, to the contrary, its frivolousness was demonstrated by withdraw- ing the subpoena the evening before the motion to quash was to be heard," Martin wrote. "Considerable time, eff ort, and expense were wasted with this tac- tic. It was an abuse of process." Last summer, the Wyrd Sis- ters switched law- yers and opted to settle all outstand- ing litigation. As part of the agree- ment, Warner Bros. agreed not to pursue costs for the most re- cent 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. Th e matter was adjourned until late November to give Townley-Smith time to recover from her condi- tion, 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 al- leged criminal off ences. "Ms. Townley-Smith's con- duct throughout the Manitoba proceedings, especially since the motion in May 2009 and increas- ingly since being discharged as counsel for Th e Wyrd Sisters, has deteriorated to the point that her competence is a serious concern," Martin wrote, noting Townley- Smith ultimately refused to par- ticipate 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 fi rst time Townley- The Ontario Municipal Service Directory: A Comprehensive Guide for Real Estate Professionals, 2010 Smith has found herself the sub- ject of a withering attack from the bench. in Ontario, After losing the initial case the Wyrd Sisters All the municipal services information you need for real estate searches under one cover This handy resource helps you process your real estate transactions more efficiently, saving you time and energy. Published annually, The Ontario Municipal Service Directory: A Comprehensive Guide for Real Estate Professionals, 2010 gives you up-to-date and easily accessible municipal contact information. 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Perfectbound • March 2010 • One time purchase • $86 • P/C 0517010999 On subscription • $81 • P/C 0517140999 • ISSN 1206-694X For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com OMSD - 1/2 pg - 4X for LT.indd 1 3/2/10 4:28:50 PM — 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, misrepresenta- tion, abuse of process, and abuse of public offi ce. 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 ob- ligation to represent her client fearlessly, resolutely, and honour- ably, but proceedings must not be brought for an improper purpose, and counsel must refrain from ad- vancing her personal opinions or giving evidence," he wrote. "I am concerned that counsel has failed to discharge these obligations as an offi cer of the court." Hackland, too, found himself the subject of a motion by Town- ley-Smith to recuse himself at a later hearing for costs in the same matter. Th e motion accused him of altering court transcripts. "Ms. Townley-Smith's basis for making this scandalous allega- tion is that her personal recollec- tion of one exchange between her and the court diff ers somewhat from the text of the transcript," Hackland wrote last July, fi nding Townley-Smith personally liable for more than $50,000 in costs to the three judges who were de- fendants in the case. Hackland called the action a clear abuse of process that could never have succeeded due to the absolute immunity aff orded to judicial offi cers in the perfor- mance of their work. LT W ith Introduction and H by Michael L. Y istorical Linkages oung, LL.B.

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