Wednesday, February 14, 2018

Kevin Hearn Vs. Joseph B. McLeod and Maslak McLeod Gallery Inc. /Statement of Defence/

Kevin Hearn Vs. Joseph B. McLeod and Maslak McLeod Gallery Inc.
/Court File No. CV-12-455650/


~ Justice Edward M. Morgan, May 24, 2018

"Spirit Energy of Mother Earth",  © 1974 Norval Morrisseau
~ Click HERE to view the inscription on canvas VERSO
Provenance: Purchased from Kahn Auctions in Pickering, Ontario; sold to Mr. Kevin Hearn by Mr. Joseph McLeod (1928-2017) of Maslak McLeod Gallery (Toronto, Ontario) & exhibited at the Art Gallery of Ontario (AGO) on June 11th, 2010 (click HERE)


The following copyrighted section is an excerpt taken from, “,” and used with permission from the author John Goldi.

"The Defence was written, for McLeod, by Brian Shiller, and filed with the Plaintiff Hearn in Feb 2013. That Defence makes utterly clear the provenance of “Spirit Energy” as coming from David Voss by way of Randy Potter (Khan) Auctions.
The Defence, of course, makes a total mockery of Carmen Robertson’s “provenance” analysis in her “expert” report, where she deliberately and maliciously insists on using an outdated, and superceded note tossed off by Joe McLeod, years ago, with errors in it. Robertson – as is so common with her – sneers off and ignores experts and documents she does not like, and favours documents and experts that she finds useful, to help pursue her private vendetta against “Spirit Energy” and Joe McLeod.
There is always the possibility that she has NOT even bothered to read the Defence, where her error is so clearly exposed, and ridiculed, because she already had made up her mind about “Spirit Energy” and Joe McLeod, and did NOT need to listen to him, his lawyer, or his Defence.
This is Repeating on Me – Her disdainful dismissive refusal to consult other opposing experts is exactly what Judge Martial chided Margaret Hatfield for – she loudly sneered off Joe McLeod – and for listening too much to the same two Robertson informers, Ritchie Sinclair and Donald Robinson.
Sinclair also delivered the lucrative Hearn legal contract to his longtime Morrisseau “fakes” business partner, Jonathan Jerome Sommer c.j.c. from Sutton, Quebec.

(This new lawsuit contract would dovetail nicely into another Morrisseau “fakes” lawsuit Sommer was already handling, Hatfield v Child.

That lawsuit, too, had also been precipitated by Sinclair grooming a hapless, helpless, and gullible elderly lady, Margaret Hatfield, by convincing her first, her Morrisseau BDP was a fake, that she should sue the gallery that sold it to her, that her case was a slam dunk, that she would get all her money back and then some, and that she should hire his Morrisseau “fakes” business partner, Jonathan Sommer. Sinclair had delivered her into Sommer’s lap a year before he began grooming Hearn to follow suit. Sinclair’s contribution to the Sommer Business Law Firm bank account, for delivering his two Morrisseau “fakes” contracts, has  been estimated to be between $200 – 250,000.)"
Excerpt from Article by John Goldi, copyright 2018.

Text: Courtesy of

'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











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

5. The allegations of fraud as set out in paragraphs 14, 15, 24, 25, 28, 30 and 31 of the statement of claim are scandalous, frivolous and vexatious.

Kevin Hearn
6. Mr. Hearn is a famous Canadian. He is a member of the musical band the Barenaked Ladies. He publicized his statement of claim in this proceeding. As a result of his fame his allegations in the statement of claim have received widespread notoriety in the press. Mr. Hearn is also extremely well liked and respected as a musician and the public would never believe him to make unsubstantiated allegations. As a result, the public assumes the allegations of fraud made in his statement of claim are true.

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.

The defendants are experts in authenticating Morrisseau's art

8. The defendant gallery has significant experience and expertise in the field of native art and has exhibited numerous native artists throughout Canada.

Joseph McLeod (1928-2017)
9. Mr. McLeod has been qualified by the Federal Court of Canada as an expert who may provide opinion evidence regarding works of art by the late artist Norval Morrisseau ("Morrisseau"). Mr. McLeod has been a student of Morrisseau's art for more than 50 years, has exhibited his art and has a particular expertise in the content and form of Morrisseau's paintings in the period from 1960 to 1980.

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.

The provenance of Morrisseau's art

12. Norval Morrisseau was a prolific artist. By some accounts he painted as many as 15,000 works of art in his lifetime. The exact number is unknown and will never be known. He painted from the late 1950s until some time in the 1990s. The exact date when he could no longer paint due to his ill health is unknown.

Norval Morrisseau, late 1980
13. Morrisseau was an alcoholic who was burned over a significant percent of his body in a fire in 1972 and suffered two strokes in the 1980s. By 1985 Morrisseau was confined to a wheelchair. In or about 1995, Morrisseau was diagnosed with Parkinson's disease. By the time of his death in 2007, Morrisseau had no use of his hands, could not speak and was being carted around by his supposed caregivers who used and abused him for their personal financial gain.

14. During his lifetime, Morrisseau lived and worked in many places. He painted while living on the street, in jail and in many communities around Northern Ontario. At times, he traded paintings for sustenance or alcohol. He could paint many paintings at one time. Much of the art he produced was masterful. However, many of the paintings he produced were inferior and simply uninspiring. He signed the front of his paintings using Cree syllabics to spell out his native name Copper Thunderbird.

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.

16. Like many famous artists, determining the provenance of a work of art by Norval Morrisseau can prove difficult. Many of his works were painted and sold in small communities throughout Northern Ontario over a long period of time.

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

18. Commencing in or about 1999, many paintings by Morrisseau came up for auction through an auction house named Khan Auctions. Most of those paintings were dated in the 1970s and Morrisseau signed the back of some of the paintings in dry brush, black acrylic paint. Those paintings are in fact the easiest paintings by Morrisseau to authenticate as many samples of his signature and writing are available for comparison.

Donald Robinson
19. The Khan Auction paintings trace their origins through a private art collector named David Voss. David Voss has advised Mr. McLeod that he acquired many Morrisseau paintings from various individuals in Northern Ontario over several years commencing in or about 1980. He has even provided to Mr. McLeod the names of many of those people.

20. Both Mr. MacLeod and an art dealer named Donald Robinson, purchased Morrisseau paintings from Khan Auctions. Donald Robinson purchased 28 paintings at the Khan Auctions.

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
22. In addition to purchasing paintings from Khan Auctions, Mr. Robinson's gallery appraised paintings purchased from Kahn Auctions that they did not purchase.

Warriors in Circle of Life,
Sold by KRG
23. Mr. Robinson also re-sold many of the Khan Auction paintings and represented those paintings as works of art by Morrisseau.

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" 
26. Mr. Robinson went public in a National Post article and stated that there were serious concerns with the Khan Auction paintings. Mr. Robinson raised suggested that all Morrisseau paintings sold at Khan Auctions are fakes. He was held out in the article as a leading expert on Morrisseau art. Many years later, he provided supposed expert testimony that Morrisseau never signed the back of his paintings in black acrylic paint. The conclusion therefore is that the signature on the back of the Khan Auction paintings that purports to be that of Norval Morrisseau is in fact a forgery. This allegation by Mr. Robinson has resulted in buyers, like Mr. Hearn, falsely accusing gallery owners of fraud where no fraud exists.

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
28. The only expert to challenge the authenticity of the Khan auction paintings is Mr. Robinson. Mr. Robinson is unqualified to determine the authenticity of a Morrisseau painting as he is untrustworthy and has sought to destroy the secondary Morrisseau market for his own financial gain and that of his gallery. Mr. Robinson obtained paintings directly from Morrisseau in the 1990s and has gained an advantage in the sale of Morrisseau's paintings by effectively telling the world that his gallery is the only gallery to trust when purchasing a Morrisseau.

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.

31. In reality, Morrisseau was in very poor physical and mental health and was simply being manipulated by others for their own financial gain. In the last several years of his life, Morrisseau suffered from elder abuse. He had no control of his finances or his legacy.

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.

36. Today, as a direct result of Mr. Robinson's knowingly false statements concerning the Khan Auction paintings, the market for Morrisseau's art is stagnant. Mr. Robinson has assisted in destroying Morrisseau's financial legacy for his own financial gain. To this day, Mr. Robinson emphasizes the alleged "second-tier" of Morrisseau's art that is dangerous to purchase. He falsely states this to increase his sales while diminishing the sales of other galleries who sell legitimate works of art by Morrisseau. The Kinsman Robinson Gallery holds itself out as the only trustworthy place to buy a Morrisseau painting as they have distanced themselves from the taint of the Khan Auction paintings - a taint manufactured and manipulated by Donald Robinson himself.

Ritchie Sinclair
37. To compound the problem, an individual named Ritchie Sinclair, who falsely calls himself a protege of Morrisseau, has deceitfully labeled approximately 1,000 paintings by Morrisseau as fake and has assisted Mr. Robinson in propagating the myth that the Khan Auction paintings are fakes. Mr. Sinclair is a failed artist who has absolutely no expertise or qualifications to determine the authenticity of a Morrisseau painting. However, prospective purchasers of a Morrisseau painting undoubtedly do Internet searches and are easily directed to Sinclair's fraudulent web site.

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
40. In or about May, 2005 Mr. Hearn attended the defendant Gallery for the purpose of purchasing a painting by Morrisseau.

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
45. Contrary to the allegations in paragraph 10 of the statement of claim, prior to his purchase of the Painting, Mr. Hearn did not ask the defendants about its provenance. Further, Mr. McLeod did not and would never advise anyone that the defendant gallery "was the best and safest place to purchase a Norval Morrisseau work". In fact, that is a slogan that Mr. Robinson used to advertise the Kinsman Robinson Gallery's sale of Morrisseau art at or around the time the Painting was purchased by Mr. Hearn. Mr. McLeod knew the painting was authentic and its provenance was never an issue in his discussions with Mr. Hearn. The defendants are certain to this day that the Painting is authentic.

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
47. His Catholic grandmother and his animistic shaman grandfather raised Morrisseau. He was constantly being told stories that spoke of animate and inanimate things and their relationship to the universe. The stories Morrisseau was told, for example, spoke of the beaver and how it goes into the body and becomes the spirit. Mr. Hearn was told about the meaning of the use of circles in the painting - the representation of the sun, of up and down and how these images form the basis for understanding the living.

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:

Canvas VERSO
50. The sketch of a copper thunderbird on the back is rare but Mr. Morrisseau did draw them on some of his paintings. Mr. McLeod has provided to Mr. Hearn examples of other paintings by Morrisseau that contained a copper thunderbird sketch on the back. The sketch adds to the value and importance of the Painting. At the age of 19, Morrisseau was very ill. It was feared that he would die. In a renaming ceremony in the hospital, a medicine woman gave Morrisseau the new name Copper Thunderbird. According to the traditions of Morrisseau's people, giving a powerful name to a dying person can save their lives. Morrisseau recovered and almost always signed his works with his Anishnaabe name in Cree syllabics on the front of his paintings.

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.

53. As a result of the deliberately false allegations by Donald Robinson that were published in the National Post in May, 2001, Mr. McLeod had a number of the Khan Auction paintings reviewed by a forensic examiner to determine if the handwriting on the backside of the paintings was that of Morrisseau. Mr. McLeod possesses handwriting samples from Morrisseau as a result of the fact that he knew and dealt with Morrisseau for several decades. For example, Mr. McLeod is in possession of a letter sent to his wife that was written and signed by Morrisseau on December 30, 1968.

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.

56. Mr. McLeod determined that the paintings came to the Khan Auction through David Voss. On further investigation, he learned that Mr. Voss lived in Northern Ontario in the early eighties, had met Morrisseau, had seen him paint and was very successful in purchasing paintings by many artists including Morrisseau. McLeod also met with David Voss years prior to meeting Mr. Hearn. Mr. Robinson takes the position that Mr. Voss has never existed.

57. For Mr. McLeod, this information was consistent with his understanding of the whereabouts of Morrisseau at the time the paintings were created.

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."

Jack Pollock
59. Mr. McLeod was well aware of Mr. Pollock's writings long before he met Mr. Hearn.

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 

62. The defendants did not hear from Mr. Hearn again until some four years later in 2009. In the intervening period (on December 4, 2007), Morrisseau passed away.

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.

65. The Painting is not "of a species of Morrisseau painting that is the subject of significant and persistent disagreement regarding authenticity". No such species exists. The only purported expert who has suggested that all of the Khan sourced paintings are fakes is Mr. Robinson. In the eight years that Morrisseau was alive following the commencement of sale of the Kahn-sourced paintings he never stated publicly that (i) signatures on the back of his paintings in black acrylic dry brush were forgeries or (ii) all of the paintings sold at Khan auctions were fake. In fact, other than some questionable affidavits purportedly by Morrisseau, he has never questioned any Khan-sourced paintings. Moreover, Morrisseau himself authenticated 1970s style paintings signed on the back in black acrylic paint contrary to Mr. Robinson's flawed expert opinion.

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
67. The allegations in paragraphs 16 and 17 of the statement of claim are accurate except the paintings that the defendant Gallery exhibited at the AGO show are genuine works of art by Morrisseau and were not purchased from Khan Auctions.

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:

a. Were the Painting came from;

b. Who owned it before him; and

c. If there was any further information that Mr. McLeod could provide to him concerning the authenticity of the Painting.

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;

Jennifer Bhogal,
AGO Art Rental + Sales Gallery
c. He related to Mr. Hearn that he contacted "Jennifer" at the AGO and had a "positive conversation" with her and that she indicated to him that there was no investigation of the Painting being undertaken, that only AGO staff members were aware of the issue and that a letter of apology was going to be sent to Mr. McLeod to clear up the misunderstanding; and

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.

Gerald McMaster,
AGO Curator
72. Mr. McLeod and Mr. Hearn spoke on the phone a few times. Mr. McLeod asked Mr. Hearn to contact the AGO and demand that they state in writing that the Painting was a fake. Mr. Hearn did not wish to do so. Mr. McLeod asked if he could contact the AGO and Mr. Hearn agreed.

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.

Matthew Teitelbaum,
AGO Director
75. On August 6, 2010, Mr. McLeod wrote to the Director of the AGO demanding an explanation. The Director of the AGO never responded.

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.

81. The defendants deny that they have acted fraudulently, deceitfully or negligently as alleged, or at all, and Mr. Hearn is put to the strict proof thereof.

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

Brian Shiller;
Defendant's Lawyer

Barristers & Solicitors
1 l Prince Arthur Avenue
Toronto, ON MSR 1 B2
Brian G. Shiller (34470G)
Tel: 416-964-9664
Fax: 416-964-8305
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/

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