This case concerned the painting Spirit Energy of Mother Earth by Norval Morrisseau, a First Nations artist of Anishinaabe heritage. The appellant, Kevin Hearn, purchased the painting from Joseph McLeod at the Maslak-McLeod Gallery (the respondents) in May 2005. It is well known that a large number of forged Morrisseau works are in circulation and Hearn was aware of this. As a result, Hearn asked McLeod about the provenance of the paintings he was offering for sale and sought assurances over their authenticity. On purchase of the painting, the Gallery provided Hearn with a provenance statement, containing information on the prior owners of the work.
In 2009, Hearn registered his painting with the Norval Morrisseau Heritage Society. At this point, no concern over its authenticity was raised. In 2010, Hearn lent his painting to the Art Gallery of Ontario for a show of which Hearn also acted as co-curator. After the show's opening in June 2010, Spirit Energy of Mother Earth was removed from display by the lead curator, following the receipt of an email from Ritchie Sinclair, an individual recognised for his frequent participation in litigation related to Morrisseau works, who alleged that the painting was a fake. At this stage, Hearn contacted McLeod, who provided him with a different provenance statement.
At the time of initial purchase, the first provenance statement listed the ownership as Norval Morrisseau, Rolf Schneiders, Allan Swanson, the Maslak-McLeod Gallery and Kevin Hearn. The second provenance statement (dated 10th July 2010) listed the ownership as Norval Morrisseau, Rolf Schneiders, Robert Voss and Irving Jacobs. Schneiders and Jacobs both denied having owned Spirit Energy of Mother Earth and, according to the trial judge, the others listed on this provenance statement had either died or could not be located.
Hearn brought an action for breach of contract against the Gallery and McLeod personally, claiming that McLeod had sold him a fake painting, accompanied by a false provenance statement which failed to verify the painting's authenticity. He claimed the return of the purchase price ($20,000), an additional sum representing the loss of investment return on the painting ($25,000), and punitive damages ($50,000). Hearn also claimed prejudgment and post-judgment interests and costs.
Prior to the commencement of the first instance trial, McLeod died and his Gallery closed. Subsequently, counsel for McLeod's estate failed to appear at the opening of trial. The trial judge therefore allowed James White, a Morrisseau dealer, and his corporation to intervene, as well as Nathaniel Big Canoe, an Anishinaabe painter. (2) It was reasoned that the adversarial system would operate more effectively when the defence was represented at trial and that the case concerned public issues, namely the value of other Morrisseau paintings and the legacy of an important First Nations artist, justifying the involvement of these third parties.
THE FIRST INSTANCE DECISION
Justice Edward M. Morgan gave the initial judgment on 24th May 2018 in the Superior Court of Justice, Ontario. He characterised the central question as whether the plaintiff, Hearn, had proved, on the balance of probabilities, that the defendants had sold him a forged Morrisseau painting. It was held that the painting was not proved to be a forged or fake Morrisseau and that, therefore, from the law's perspective, it was a real Morrisseau painting.
The trial judge made his assessment based on three categories of evidence. Firstly, he considered evidence related to the Northern Ontario fraud ring, which was alleged to have operated for several years creating numerous Morrisseau forgeries. Multiple witnesses were called to give evidence attesting to this. Morgan J. prefaced his consideration of this evidence with an acknowledgement of its interest as background information only. The trial was concerned solely with the authenticity of one painting. It was concluded that no witness was able to attest to having knowledge of Spirit Energy of Mother Earth. They were only able to say that they knew, through various means, that many fraudulent Morrisseau works were in existence.
This evidence was criticised for being hearsay and distracting from the main issues of the case. Morgan J. was of the opinion that the information about the fraud ring could become prejudicial, leading to analysis which would be "inflammatory, socially biased, and non-probative". (3) The fact that the painting was produced in the equivalent of a 'high crime' area was not sufficient to impugn its authenticity.
The second set of evidence was given by the expert witness Dr Carmen Robertson, a professor of Indigenous Art History at the University of Regina. She was qualified to give evidence as an expert in art history, contemporary indigenous art and the artistic methods of Morrisseau. Morgan J. spent a considerable amount of the judgment assessing the technique known as 'Morellian analysis', which was utilised by Dr Robertson when giving her evidence. This kind of analysis is also known as connoisseurship. (4) It is an approach through which an expert examines details of an artist's work in order to draw their own conclusions on whether a certain painting was produced by the same hand. (5)
Dr Robertson utilised this technique to consider the overall composition, the colour scheme, the rendering of eyes and other components of Spirit Energy of Mother Earth. She concluded that many elements of the painting were...