/Court File No. CV-12-455650/
Illustrated Statement of Defence; prepared by U. Matulic:
Filed in The Superior Court of Justice – Ontario on February 7th, 2013
Court File No. CV-12-455650
ONTARIO SUPERIOR COURT OF JUSTICE
JOSEPH BERTRAM MCLEOD and MASLAK-MCLEOD GALLERY INC.
STATEMENT OF DEFENCE
1. The defendants admit the allegations contained in paragraphs 2, 3 (except for the allegation that the corporate defendant is a personal agent for Mr. McLeod), 4, 5, 9, (other than the word "alleged") 11 (other than to what representations Mr. Hearn relied upon), and 16-18 of the statement of claim.
2. The defendants deny the allegations contained in paragraphs 1, 7, 8, 10-15, 19-22, and 24-32 of the statement of claim.
3. The defendants have no knowledge of the allegations contained in paragraphs 6 and 23 of the statement of claim.
4. The defendants deny that Mr. Hearn is entitled to the relief claimed, or at all, and Mr. Hearn is put to the strict proof of the entitlement to the relief claimed in paragraph 1 of the statement of claim.
Mr. Hearn falsely alleges fraud
7. The allegations of fraud and, more particularly, of taking part in a widespread criminal fraud scheme as alleged in paragraph 14 of the statement of claim, are entirely false and have irreparably damaged the business of the defendants. Mr. Hearn should be condemned to pay to the defendants their substantial indemnity costs of this action. Mr. Hearn's conduct in this regard was reckless and showed a total disregard for the reputation and livelihood of the defendants.
|Joseph McLeod (1928-2017)|
10. Mr. McLeod has extensive experience buying, consigning and selling the art of Morrisseau and has a profound respect for the legacy of the artist. He would never knowingly sell any painting that was a forgery or a fake. Neither of the defendants has in fact knowingly, or otherwise, sold paintings that were represented to be paintings by Morrisseau when they were not.
11. To this day, Mr. McLeod maintains a relationship with Morrisseau's children and has attempted to assist them in benefiting financially from their father's legacy.
|Norval Morrisseau, late 1980|
Norval Morrisseau Signature Comparison; Signed book Vs.
Paintings from collection of Rolf Schnieders (1928-2015)
15. At various times, Morrisseau signed his English name on the back of his paintings. He used various mediums to sign his English name. There are paintings by Morrisseau in the 1960s, 1970s and 1980s that are signed in pencil, pen and marker. At times, at least in the l 960s and 1970s, Morrisseau signed the backside of some of his paintings in black acrylic paint. Typically, the last part of a painting that Morrisseau would complete was the black lines around the images. Once he finished painting the black lines, he would turn the canvas over, date, sign and identify the painting using the remnants of the black paint on his brush. Because of this, frequently the paint was faded in his signature, the date and the identification of the painting.
17. Like numerous famous artists, including Picasso, Warhol, Basquiat and Modigliani, many of Morrisseau's paintings cannot be traced directly back to him and the authenticity of his art is often controversial. In fact, the vast majority of Morrisseau' s paintings cannot be traced directly back to him.
The Khan Auction Paintings
21. Mr. Robinson is an individual who resides in the Province of Ontario and has a gallery in Yorkville called the Kinsman Robinson Gallery. For a period of time from 1989 onward, Mr. Robinson had a business relationship with Morrisseau and has been, and is, in possession of a large quantity of paintings received directly from Morrisseau.
|"We Are All One, 1979",|
Appraisal by KRG
|Warriors in Circle of Life,|
Sold by KRG
24. Mr. McLeod also bought some paintings from Khan Auctions, but not as many as Mr. Robinson. When Mr. McLeod attended Khan Auctions, he formed the opinion that the paintings he viewed and purchased were authentic works of art by Morrisseau. Mr. Robinson also formed the opinion that the Khan Auction paintings were authentic and advised other prospective bidders that they were authentic.
Robinson seeks to control the market in Morrisseau paintings
25. As the market in Morrisseau art became saturated with paintings sold at Kahn Auctions, the value of Mr. Robinson's paintings that he possessed through his business relationship with Morrisseau declined. This is because large numbers of Morrisseau paintings were readily available in the market place.
|National Post's "Morrisseau fakes alleged"|
27. Shortly after the National Post article, Mr. Robinson sent out a letter to prospective Morrisseau art purchasers telling them that the market was saturated with fake painting and that if purchasers wanted to be sure that they were buying an authentic Morrisseau, they should buy from his gallery.
|Donald Robinson's letter to Purchasers|
29. Starting in or about 2003, Mr. McLeod received correspondence from a lawyer purporting to act on behalf of Morrisseau. Mr. McLeod was told that paintings he was exhibiting for sale in the defendant Gallery and in catalogues were fakes.
30. Mr. McLeod was told that he was not permitted to appraise works of art by Morrisseau and that he was not entitled to show images of Morrisseau's works of art in any catalogues. These prohibitions carried no legal weight.
|Norval Morrisseau authenticating his artworks, April 2002|
32. Despite Mr. McLeod's repeated efforts to address the allegations that were supposedly coming from Morrisseau, no detail or response was ever provided. Despite the expressed threat of litigation by Morrisseau's controllers, no proceedings were ever commenced and none of the allegations were ever substantiated. The allegations were not coming from Morrisseau. In fact, in April, 2002, Mr. Morrisseau personally authenticated paintings that were signed by him on the back in black acrylic paint and dated in the 1970s. He did so by looking at them, and then signing them again and putting his thumb print on them. There are several eyewitnesses to this occurring and there is videotape of Mr. Morrisseau undertaking the authentication process.
33. Norval Morrisseau died on December 4, 2007. The level of control by his supposed caregivers was so all encompassing that they sought to cremate him without any permission from the Morrisseau family who had to step in and stop the cremation so that Morrisseau could be buried next to his wife on the Keewaywin Native Reserve where he belonged. Morrisseau's supposed caregivers had taken control of his financial affairs and attempted to exclude his children from his estate. His children were forced to retain counsel and litigate for the right to take part in their own father's legacy.
|Dr. Atul K. Singla Brian Lindblom Kenneth J. Davies|
34. Numerous of the Khan Auction paintings have been studied by forensic examiners who have determined that the signatures on dozens of Khan Auction paintings are authentic signatures of Morrisseau.
35. At the relevant times, the Morrisseau family considered the Khan Auction paintings as authentic and galleries across Canada exhibited and sold Khan Auction paintings. To this day, the Morrisseau family does not dispute the authenticity of the Khan Auction paintings.
38. The defendants brought action against Sinclair to do what they could to mitigate their losses and the Ontario Superior Court of Justice ordered Sinclair to make it clear on his web site that the allegatiorys he was making were disputed. Sinclair complied with the court order.
39. The defendants are not aware of any other supposed experts in Morrisseau art who have claimed that the Khan Auction paintings are fakes.
Mr. Hearn purchases a Morrisseau painting from the defendant gallery
|Spirit Energy of Mother Earth|
41. Contrary to what is alleged in paragraph 7 of the statement of claim, Mr. Hearn attended the defendant Gallery on many occasions. He told Mr. McLeod of his longtime interest in Morrisseau and that he was shopping around for a painting. Mr. Hearn is also a painter.
42. Mr. Hearn became interested in a painting entitled "Spirit Energy of Mother Earth" (the "Painting"). The Painting was on consignment to the defendant and had been purchased at Kahn Auctions.
43. It is an important work of art by Morrisseau and Mr. Hearn recognized this. Mr. McLeod and Mr. Hearn talked at length about the stories told by Morrisseau's art. By 2005, Mr. McLeod had gathered more than 40 years of experience and extensive knowledge of Morrisseau's art and he explained to Mr. Hearn that the Painting depicted the spirit, like in Christianity, as having the ability to alter its shape, to float, to act as a gage and reveal. The depictions in the Painting include birds, snakes, and other living things as having spirits that become uniform. Colour was extremely important to Morrisseau. The Painting is a vivid green. Morrisseau saw the colour green as a representation of life.
44. Mr. Hearn purchased the Painting for the sum of $20,000 as alleged in paragraph 9 of the statement of claim.
|KRG - Norval Morrisseau Retrospective 2010|
46. Contrary to the allegations in paragraph 12 of the statement of claim, at no time did Mr. McLeod advise Mr. Hearn that Morrisseau "was very ill and was expected to die shortly". While the defendant Gallery seeks to purchase art for resale in the hope that the art will appreciate in value, it can never know this for certain and never guarantees to its customers that their purchases will appreciate in value.
The Provenance of the Painting
|Moses (Potan) Nanakonagos|
48. Mr. McLeod explained the significance of the fact that all lines in the Painting join together. This is what Morrisseau considered to be the center of his being. Mr. Hearn was told that the Painting is very complex.
49. Further, Mr. Morrisseau signed, titled, dated and drew a sketch of a Copper Thunderbird on back of the Painting as follows:
51. Contrary to the allegation in paragraph 9 of the statement of claim, the date indicated on the back of the Painting is 1974 and not 1970.
52. The Painting was on consignment to the Defendant and had been purchased from Khan Auctions. Mr. Hearn has been told the name of the individual who consigned the Painting to the defendants, where that individual obtained the Painting and its ownership as far back as was possible.
54. The forensic examinations concluded that in some instances it was impossible to match the handwriting due to smudging of paint, the faintness of the handwriting and the difference in the writing instruments used. The forensic examiner was able to assess the signatures on many other paintings and reached the conclusion that the handwriting on the paintings had many similarities to Morrisseau handwriting samples and that there was strong support for the conclusion that the signatures on the back of typical Khan Auction paintings were written by Morrisseau.
55. The defendants did not simply determine that the paintings were authentic based on the handwriting on their backs and Mr. McLeod's expertise; they also looked into the provenance of the paintings and did so long before they met Mr. Hearn.
58. Mr. McLeod also had knowledge that Morrisseau had been in jail frequently in Northern Ontario and that he had done a great deal of painting from jail in or around the time that many of the Khan Auction paintings were created. For instance, Morrisseau's first art dealer, Jack Pollock, wrote in his book Dear M, Letters from A Gentleman of Excess (1979) of the following experience in 1974 (the same year the Painting is dated):
"I knew that Norval was in the Kenora jail. He had been there for over four months. On more than one occasion, I had bailed him out of jail. But this time the Kenora police chief refused bail, stating that if Morrisseau was to survive, he would have to dry out completely. Reluctantly, I allowed him to remain in prison.
Two months later, I visited him in jail and found he was well and being treated like a prince. He had one cell in which to sleep and another one he used as a studio. Some of his finest pictures were painted during that period."
60. While Mr. McLeod was satisfied with the provenance of the Khan Auction paintings, in November, 2001 he also came into possession of a notarized statement from David Voss that provided the following information:
a. While living in Northern Ontario, he collected for resale acrylic on canvas paintings by Norval Morrisseau;
b. That he placed those paintings for sale in a number of galleries, with collectors and in auction houses; and
c. That the sources of his paintings included five (5) individuals who he named in his statement.
61. Mr. McLeod was also in contact with some or all of Morrisseau's seven children. Many of them viewed some of the Khan Auction paintings and were of the view that they were works by their father.
Post purchase conduct of Mr. Hearn
63. Further to the allegations in paragraph 13 of the statement of claim, in 2009 Mr. Hearn did make a request for certain information of and concerning the Painting and received the information requested. The information related to the provenance of the Painting and included an appraisal by Mr. McLeod that placed a value on the Painting of $25,000. The appraisal is dated May 5, 2009 and was likely requested by Mr. Hearn for insurance purposes. Mr. McLeod made it clear on the face of the appraisal that "for legal reasons, this appraisal is not to be considered a scientific fact, but rather as a professional opinion on the art object described".
64. Contrary to the allegations in paragraph 14 of the statement of claim, there was no critical information to provide to Mr. Hearn. At no time did Morrisseau state in writing or otherwise that the Painting was a fake or that the signature on the back was a forgery.
66. Contrary to the allegation of criminality alleged in paragraph 14 of the statement of claim, the defendants were not "selling and authenticating large quantities of fake and/or forged Morrisseau paintings as a part of a fraud scheme." Mr. Hearn has no evidence of such a scheme as no scheme exists.
|"Spirit Energy of Mother Earth" at AGO|
68. With respect to the allegations in paragraph 18 of the statement of claim, Mr. Hearn contacted the defendants by email dated June 28, 2010 to relate what had happened at the AGO show. He wanted to know:
b. Who owned it before him; and
69. On June 30, 2010 Mr. McLeod responded to Mr. Hearn's email and advised as follows:
a. He had tried to contact Mr. Hearn by telephone but was unsuccessful in reaching him;
b. He asked Mr. Hearn to call him;
AGO Art Rental + Sales Gallery
d. He assured Mr. Hearn that the Painting was authentic;
70. Despite her assurances, Jennifer never did provide a letter of apology.
71. On July 10, 2010 the defendants provided to Mr. Hearn details of the provenance of the Painting known to them and a forensic report of other Khan Auction paintings. Mr. McLeod also explained to Mr. Hearn that the Painting was a "spirit" painting and he provided to Mr. Hearn examples of spirit paintings from the publication "Morrisseau", from Methuen Publication, Jack Pollock and Lister Sinclair. This is the definitive book of art by Morrisseau that was published in 1979. Mr. McLeod explained to Mr. Hearn that the other spirit paintings establish the bald or smooth head of the spirit known as "Enkenkar" that is exhibited in the Painting. Mr. Hearn was told that this was a repeated use of imagery in Morrisseau's work when he was depicting spirit beings. Mr. McLeod also informed Mr. Hearn that the Painting and the examples from the Pollock and Sinclair book were all paintings from the 1970s that were painted by Morrisseau in Northern, Ontario in the Kakebeka Falls area. Finally, Mr. McLeod let Mr. Hearn know that Morrisseau would sketch a Copper Thunderbird on the back of the painting when he considered the painting to be of special worth.
73. Mr. McLeod wrote to the curator of Native Art at the AGO on July 10, 2010 and insisted on being a party to any investigation of the Painting that would be undertaken. The AGO did not respond to the July 10, 2010 letter.
74. Mr. McLeod then spoke to Mr. Hearn again and explained that the AGO had not responded to his letter. Mr. McLeod suggested that Mr. Hearn should contact the Director of the AGO for an explanation. Mr. Hearn did not wish to do so but told Mr. McLeod he could do so if he wished.
76. Mr. Hearn never made any demands of the defendants other than those set out above and never sought to return the Painting.
77. Mr. Hearn never contacted Mr. McLeod again. He waited almost two years and started this lawsuit.
78. The defendants expressly deny that Mr. Hearn demanded his money back as alleged in paragraph 22 of the statement of claim or at all.
79. If Mr. Hearn has the opinions of experts that the Painting is a fake as alleged in paragraph 23 of the statement of claim, he has never provided those opinions to the defendants. Following service of the statement of claim, the defendants sought production from Mr. Hearn of the opinions and he refused to provide them.
80. The defendants plead that the signature, sketch and description on the back of the Painting is the authentic handwriting of Norval Morrisseau and the Painting is an authentic work of art by Norval Morrisseau.
82. The defendants deny that they have breached any warranty to Mr. Hearn and he is put to the strict proof of that allegation.
83. The defendants plead and rely upon the Negligence Act, R.S.O. 1990, c. N. 1. The defendants also plead and rely upon the Limitations Act, R.S.O. 2002, S.O. 2002, c. 24.
84. The defendants ask that this action be dismissed with costs payable on a substantial indemnity basis.
February 7, 2013
RUBY SHILLER CHAN HASAN
Barristers & Solicitors
1 l Prince Arthur Avenue
Toronto, ON MSR 1 B2
Brian G. Shiller (34470G)
Lawyers for the Defendants
Click HERE for Statement of Defence
/Court File No. CV-12-455650/
Click HERE for Statement of Claim
/Court File No. CV-12-455650/
- Pivotal Court Case Relevant to Authenticity of Norval Morrisseau Artworks &
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