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newsmakers 2010 a bad year for lawyer who sued judges BY HEATHER GARDINER W here in the world is Kimberly Townley-Smith? It has been quite a tumultuous ride for Townley-Smith and those who have tried to track her down. The saga began in 2005 when she was retained by Kim Baryluk, a Winnipeg folk singer in a band called the Wyrd Sisters, to fight Warner Bros. over the release of Harry Potter and the Goblet of Fire after it was revealed that a band with a similar name to Baryluk's group would appear in the movie. The lawsuit resulted in defeat with a $140,000 costs award in favour of Warner Bros. After the costs award was issued, Townley-Smith launched a $20-million lawsuit on Baryluk's behalf against three Ontario judges involved in the Warner Bros. case — justices Colin Camp- bell and John Wilkins along with Master Ronald Dash — accusing them of conspiracy, fraud, misrepresentation, abuse of process, and abuse of public office. The lawsuit was dismissed by Superior Court Justice Charles Hackland, who awarded more than $100,000 in costs against Bary- luk, with half to be paid by Townley-Smith. Baryluk fired Townley-Smith, settled with Warner Bros., and then filed her own lawsuit against her seeking $1 million in dam- ages for negligence, breach of conduct, breach of trust, and breach of fiduciary duty. She's also seeking another $1 million in punitive and special damages. In her statement of claim, Baryluk alleged she was never informed of the action against the judges and claimed she repeat- edly warned Townley-Smith she "could not afford protracted litigation and did not want to be exposed financially." "In fact, the plaintiff was unaware that an actual lawsuit had been launched until it had already been dismissed by the court," said Baryluk's statement of claim. "The plaintiff learned about the lawsuit and its dismissal on the Internet." In Townley-Smith's statement of defence, she wrote: "At every juncture, Ms. Baryluk chose to go on." She also alleged Baryluk was "well aware that any further legal action ran the risk of further [ costs being assessed against her." Warner Bros. had earlier initiated proceedings to collect the money from Baryluk in Manitoba, which resulted in yet another cost award against Townley-Smith for $13,000. The award related to a subpoena brought by Townley-Smith to cross-examine Warner Bros.' lead counsel. Warner Bros. moved to have the subpoena quashed, but Townley-Smith withdrew it the day before the hearing was to take place. "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," Manitoba Court of Queen's Bench Justice Christopher Martin wrote in his judgment. "Con- siderable time, effort, and expense were wasted with this tactic. It was an abuse of process." According to the ruling, a costs hearing was to take place in September 2009, but Townley-Smith didn't attend it due to a medi- cal condition. It was adjourned until November, when she excused herself yet again. Meanwhile, Townley-Smith sent letters to the presiding judge accusing him of bias and conspiring against her. Noting Townley-Smith was basically refusing to take part in the hearing, Martin chided her for her "obtrusive and high-handed approach." The total cost award was for $31,800, but Martin found Townley-Smith liable for 40 per cent of that amount. Then in May of this year, the Law Society of Upper Canada issued a notice of application for misconduct proceedings. In the meantime, Townley-Smith advised the LSUC in a letter of her intention to resign. The LSUC claims it attempted to serve her documents on mul- tiple occasions but was unable to find her at a home or business address. In June, it suspended Townley-Smith's licence to practise. Once again, she didn't appear at the hearing. Law Times has been unable to reach Townley-Smith despite numerous attempts throughout. The next hearing is scheduled for Feb. 14, 2011. Commercial and Residential Title Insurance Solutions At Stewart Title, we know it's our relationship with our customers that determines our success. That's why service is the foundation of our business and integrity, the keystone in all our dealings. Keeping real estate transactions where they belong – in your office! Call us today at (888) 667-5151 or visit www.stewart.ca. Untitled-3 1 2010 top news & newsmakers 5 11/17/10 4:37:53 PM ]