Baryluk v Campbell & Ors
30 October 2008, Ontario Superior Court
The defendants Colin Livingstone Campbell and John C. Wilkins Jr. are judges and the defendant Ronald M. Dash is a Case Management Master of the Ontario Superior Court of Justice. The action arose out of the original proceedings in Kim Baryluk c.o.b. The Wyrd Sisters V. Warner Bros. Entertainment Inc. et al., Toronto 05-CV-297404/PD3 (the "original proceedings" or the "Harry Potter action" as used in the judgment). The plaintiff was represented by Ms Kimberly Townley-Smith.
The plaintiff's claim in the original proceedings against Warner Bros. (passing off of the plaintiff's trade-mark, The Wyrd Sisters by the use and intended use of the name The Weird Sisters in the fourth Harry Potter film "Harry Potter and the Goblet of Fire") was dismissed by Justice Campbell as there was little chance of confusion between the Manitoba folk group and the fictional rock band portrayed in the film. The decision was not appealed.
The main allegation in the case against the defendant judges appears to be a "conspiracy" between the defendant judges and counsel for the defendants in the original proceedings to defeat the plaintiff's claim. The plaintiff's counsel, Ms Townley-Smith, appeared to put forward the allegation on her own behalf as well as on behalf of the plaintiff (para. 20 of the judgment).
The judgment says,
"This remarkable pleading contains 115 paragraphs and is twenty-seven pages in length. The plaintiff has taken the contempt motion scheduling matter and the unsuccessful outcomes of her proceedings to date in the Harry Potter action and has extrapolated this series of events into a broad-based and bizarre conspiracy theory allegedly involving the three defendants, as well as numerous other judges."
Paragraph 112 of the "Further Amended Statement of Claim" (amended 14 May 2008) claimed:
"Other judges in the Toronto Region have also become involved and their impartiality compromised. At least 15 different judges have already been caught up in this dysfunction, albeit with varying degrees of culpability."
The judge, Hackland RSJ, struck out the plaintiff's claim pursuant to the principle of judicial immunity. Judges are protected from vexatious claims by judicial immunity for anything done or said in their judicial capacity. It is a well-established fundamental constitutional principle guaranteed by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and recognized as an unwritten constitutional principle. Judicial immunity is also applicable to case management masters by virtue of s. 82 of the Courts of Justice Act, R.S.O. 1990, c. C-43. The judge also ruled that the claim could be dismissed on the basis that it constitutes a collateral attack on orders made in the Harry Potter action and is therefore an abuse of process.
Hackland RSJ cited a long line of cases including Sirros v. Moore [1975] 1 Q.B. 118, Morier v. Rivard [1985] 2 S.C.R. 716, L.M.K. v. Ontario (Ministry of Community and Social Services) [1996] O.J. No. 812 (Gen. Div.), Kopyto v. Ontario Court of Justice (Provincial Division) [1995] O.J. No. 601 (Gen. Div.), Unterreiner v. Wilson (1982), 40 O.R. (2d) 197 (C.A.), Dyce v. Ontario [2007] O.J. No. 2142 (Sup. Ct.) and Crowe v. Canada (Supreme Court, Judge) [2007] F.C.J. No. 1570.
Citing support from Karakatsanis J in Tsai v Klug 2005] O.J. No. 2889, Hackland RSJ also declined to follow the Federal Court decision in Taylor v Canada (Attorney General) [2000] 3 F.C. 298 (C.A.) which appeared to rule that there was a narrow "bad faith" exception to the judicial immunity principle
The judgment also included a direction to Ms. Townley-Smith to appear before a costs hearing on a date to be fixed to show cause why she should not be held personally liable for all or part of the costs of the proceedings, pursuant to Rule 57.07(1)(c).
The judge said this about Ms. Townley-Smith,
"I have serious concerns about the conduct of counsel, Ms. Townley-Smith, in this action. 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. I am concerned that counsel has failed to discharge these obligations as an officer of the Court.”
and
"Apart from the impropriety of attempting to be both witness and counsel, the allegations being advanced in this action against three respected members of this Court and indirectly against at least fifteen other judges, constitute, in my view, a scurrilous attack on the administration of justice by a member of the bar. Counsel's documentation filed with the Court and her oral submissions refer to conspiracy, skulduggery, lying, case fixing and criminality in reference to the defendants. There is no justification and no air of reality to any of these accusations.”
