Harry Potter and the trial by fire

The Wyrd case of a Winnipeg folksinger suing a lawyer who sued two judges, all over a tiny copyright issue

Photograph by Marianne Helm

In November 2008, Kim Baryluk, lead singer for the band the Wyrd Sisters, sat down at her computer in her Ponemah, Man., home on Lake Winnipeg’s shores. There, she happened upon a story in the Globe and Mail describing a lawsuit filed in her name. As she read on, her jaw hit the floor—the suit was news to her. Her lawyer had, without her consent, she claims, sued two Ontario judges for $21 million for conspiracy, a case so bizarre (ever hear of a lawyer suing a judge?) even the Times of London reported it.

Baryluk had hired Toronto intellectual property lawyer Kimberly Townley-Smith in 2005 to sue Warner Bros. over the use of the band’s name in a Harry Potter movie. The case was tossed and the judge ordered Baryluk, who earns a modest income running a group home for teenagers, to pay $140,000 in costs. That was just the start. In the four years Townley-Smith represented her, Baryluk, 51, launched multiple court proceedings—most of which, she claims, she was never even informed of; costs awarded against her have reached hundreds of thousands of dollars, in a legal file so complex it makes Bleak House look like a pamphlet. In the recent conspiracy case, Townley-Smith was accusing the judges of case fixing, abuse of public office and fraud.

Last year, Baryluk was slapped with $100,000 in costs with half to be paid by her lawyer, personally—rare to the extreme. Townley-Smith is now facing disciplinary proceedings by the Law Society of Upper Canada. But the cautionary tale, say legal experts, raises timely and important questions about whether adequate safeguards are in place to protect the public from the potentially reckless actions of lawyers.

In retrospect, even the initial action was bound to fail, says Baryluk. She claims all she wanted was a credit at the end of the movie saying: “The real Wyrd Sisters band lives in Canada.” But her lawyer sought an injunction to block the release of Harry Potter and the Goblet of Fire—causing Muggles to get their cloaks in a twist (death threats are apparently still rolling in). The rare legal measure, she’s since learned, had a less than one per cent chance of success. Shortly after it was dismissed, Baryluk claims, Townley-Smith went rogue, alleging contempt, bias or criminal improprieties against virtually every judge linked to the Warner Bros. action, and numerous court staff—all part of a larger conspiracy, as Townley-Smith apparently saw it, to prevent Baryluk from pursuing her claim. Baryluk was slapped with cost awards whenever the gavel came down. Soon, debt collectors were knocking, and liens placed on her home. Townley-Smith’s “reckless” actions, Baryluk claims, left her facing “financial ruin,” despite repeated warning she couldn’t afford drawn-out litigation.

So why didn’t Baryluk fire her lawyer earlier? She’d never been involved in a lawsuit before. The action, meanwhile, was pursued largely in Toronto; Baryluk didn’t witness any proceedings until late in 2008 (she fired Townley-Smith a few months later). When she did try to ask about the litigation, Townley-Smith, who’d been recommended by a blue-chip Winnipeg firm, pooh-poohed her concerns as the meddling of an “artist,” incapable of understanding the law’s complexities. She further claims Townley-Smith was holding her at “financial gunpoint,” threatening to invoice her hundreds of thousands of dollars in fees if she was fired. Townley-Smith, who could not be reached for comment, has disputed this in her statement of defence. “At every juncture, Ms. Baryluk chose to go on,” she wrote. She does admit to writing a letter accusing Baryluk of “screwing” her, a “regrettable” choice of words, she said in the statement.

Baryluk is now suing her former lawyer for negligence, breach of contract and breach of trust (a $20-million countersuit launched by Townley-Smith has been dismissed). But the saga is about more than a client running up big legal bills. The court and legal administrative bodies have been racking up problems of their own with Townley-Smith, whose conduct was repeatedly criticized by the court.

In a decision last year, Manitoba Justice Christopher Martin called her litigation tactics “generally obstructive, threatening, contemptuous, abusive and largely without substance.”

Her “competence,” he said, was cause for “serious concern,” noting her refusal to participate in a hearing. “It is distressing to note that counsel continues to criticize not only me, but also a fellow member of the judiciary,” Ontario Justice Colin Campbell wrote in a 2006 ruling, noting Townley-Smith’s intent to have him charged with contempt. Her allegations against two judges, and “indirectly at least 15 other judges,” Justice Charles Hackland wrote in 2008, constitute “a scurrilous attack on the administration of justice.” And on it goes. A Warner Bros. lawyer told Maclean’s his time as her opposing counsel was the “most bizarre experience” of his legal career. (None of the court or disciplinary allegations against Townley-Smith have been proven.)

In March 2009, Ontario’s law society received its first complaint against Townley-Smith from an opposing counsel. Disciplinary proceedings against her began in May, and her licence to practice was suspended in June, pending the hearing. But her odd behaviour had been clearly noted and documented going back to 2006 by at least four judges, some of whom she’d threatened to report to police. Most judgments relating to the litigation in fact make mention of it, raising the questions: why did it take so long for her strange behaviour to trigger an alarm? Once it did, why did it take 14 months for the law society to act? And the corollary: is enough being done to protect the general public?

To Lorne Sossin, new dean of Osgoode Hall Law School, the case raises “serious concerns” about the law society and its duty to the public. While the society needs to ensure the fairness of the disciplinary process, “it should not mean delay in dealing with lawyers who pose a real threat or whose conduct warrants action.” The society, he adds, is meant to regulate lawyers “in the public interest—not the lawyers’ interest.”

A representative for the self-regulating body told Maclean’s it has “detailed and comprehensive rules and bylaws” for lawyers and paralegals, adding that it conducts spot audits and practice reviews to ensure compliance. “Where necessary and appropriate,” says Susan Tonkin, “we take matters to formal, public discipline hearings.” Still, until last month, Townley-Smith was free to practise, take on new clients and fight their cases in court. Even her conspiracy case wasn’t enough to trigger any supervision.

After firing Townley-Smith last summer, Baryluk settled all outstanding litigation but for her case against her former lawyer. Even if she wins this suit, it’s unlikely she’ll recover a dime.

LawPro, Townley-Smith’s insurer, is refusing to cover the negligence claim because, as Baryluk’s new lawyer, Brian Shiller explains, Townley-Smith refused to co-operate with them.

Meanwhile, Baryluk’s reputation in Winnipeg and the national music community is in tatters; even those close to her questioned her judgment in launching suit after suit, says one Winnipeg musician. Legal and financial worries have left her depressed and sleepless. Her band, as if this story needed an irony, is dead. Her life, she says, is “in ruins.”

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