Introduction

The deceased Anishinaabe visual artist Norval Morriseau was the founder of the Woodfield school of painting and became known as the Northern Picasso. He is perhaps the best known Indigenous Canadian artist of his time. The case below centres on one of his paintings, entitled “Spirit Energy of Mother Earth”, that claims to be an authentic Morriseau from 1974. In 2005 the plaintiff Kevin Hearn, a well-known musician and celebrity, purchased the artwork from a gallery for $20,000.00.

Mr. Hearn was aware of the rumours that many Morriseau paintings had been forged in the Thunder Bay area. He was cautious given the price and the rumours. He insisted on a letter of provenance (proof) that the painting was an authentic original. The letter was provided by the gallery.

In 2010 the work was put on display at the Art Gallery of Ontario (AGO). Two weeks later Mr. Hearn was informed by the AGO that it had determined the work to be suspect and a possible forgery. It was removed from the exhibit. When confronted with this development, the gallery owner who sold the painting to Mr. Hearn produced a new and different letter of provenance. He further stated that he could not refund the deposit as that step would create more trouble and eventually bring down the reputation of the gallery. Mr. Hearn sued and by the time of the trial the gallery had closed, its owner had died and there was no defence to the claim and an assessment of damages.

Just prior to the trial several intervenors were added to the action. The trial proceeded and the judge decided against Mr. Hearn. He did so on the basis that Mr. Hearn had not satisfied the onus of proof. The trial was a tie and the result had to be a dismissal of the action without costs.

The Appeal

Mr. Hearn was successful in his appeal. The Ontario Court of Appeal (ONCA) was, to put it mildly, upset with the trial judge’s approach. They found a number of errors, listed below, as well as one telling final comment:

1. The first [error] is a breach of the rules of natural justice. In Pfizer Co. v. Deputy Minister of National Revenue (Customs & Excise), the Tariff Board relied on two scientific publications that were not put into evidence or referred to at the hearing. The Supreme Court found this to be a breach of the rules of natural justice. Pigeon J. noted, at para. 18: “It is clearly contrary to those rules to rely on information obtained after the hearing was completed without disclosing it to the parties and giving them an opportunity to meet it.” He added at para. 19 that this was a “grave error”.
2. The second and corollary error is with respect to the sufficiency of reasons. There is no obligation on a trial judge to accept all or any of an expert witness’s evidence. But, if the evidence is to be rejected, reasons must be given for doing so, and those reasons must themselves be rooted in the evidence before the trial judge.  Otherwise, the trial reasons are not reasonably intelligible to the parties and cannot provide the basis for meaningful appellate review.
3. The third error relates to the treatment of expert evidence. The trial judge rejected expert evidence on a contrary theory that was not put to [the expert] and on which she was not cross-examined. He drew on resources that were not in evidence but were obtained by him outside of the courtroom through research done by him or at his direction. In doing so, the trial judge stepped out of the impartiality of his position as a trial judge and descended into the arena, effectively becoming the art expert posed against [the plaintiff’s expert]. [T]he trial judge assumed “the multi-faceted role of advocate, witness, and judge”. This was not appropriate.
4. At trial, the intervenors led the evidence of [their expert] on “graphoanalysis and forensic analysis of handwriting and signatures.” The trial judge permitted him to give evidence despite the appellant’s objections. [The expert’s] report was provided only two days before he testified. The appellant was not given any time to prepare or to call a responding expert on such short notice. There were several other difficulties with Mr. Davies’ evidence, including the fact that he had only examined the painting by video link, which is also the means by which he testified. All of this was substantially unfair to the appellant;
5. I conclude with an observation.  It is often said that the most important person in a courtroom and the primary audience for reasons is the losing party, who is entitled to be treated with respect.  In his reasons, apparently as an ill-advised attempt at humour, the trial judge used lyrics from songs that had been made popular by a well-known musical group, of which Mr. Hearn is a member, to describe Mr. Hearn’s actions in buying and displaying the painting. The trial judge’s comments were inappropriate and unnecessary. 

Bottom Line: Sale by Description

The ONCA appears to have read between the lines and seen the fraud for what it was. This was the end result of an artist gaining recognition and the corresponding opportunity for greed to emerge. Further, they saw that this was indeed, whoever the artist responsible, a matter of contract. Specifically, they saw that is was a sale by description under the Sale of Goods Act (SGA), section 14, which is defined as:

Where there is a contract for the sale of goods by description, there is an implied condition that the goods will correspond with the description, and, if the sale is by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.

The letter of provenance was a part of the description and therefore a part of the deal. The deal was broken and the ONCA disposed of the matter by awarding Mr. Hearn with damages representing the cost of the painting, the appreciation in value ($30,000.00) and punitive damages of $10,000.00.

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