Dr. Carmen Robertson

The plaintiff, musician Kevin Hearn, purchased a painting titled 'Spirit Energy of Mother Earth' attributed to renowned Indigenous artist Norval Morrisseau from the defendants' gallery.

After the painting was removed from an art exhibit due to allegations of forgery, the plaintiff sued the gallery and its owner's estate, claiming the painting was a fake.

The defendants did not appear at trial, but several intervenors were permitted to defend the painting's authenticity.

The court heard extensive expert evidence on art history, Morellian analysis, and handwriting analysis.

Ultimately, the court found that the plaintiff failed to prove on a balance of probabilities that the painting was a forgery, as the expert evidence was inconclusive and subjective.

The action was dismissed with no costs awarded.

In a trial concerning art authentication, the intervenors brought a mid-trial motion to qualify an expert in graphoanalysis and forensic analysis of handwriting.

The plaintiff objected due to the late service of the expert report.

The court granted the motion, noting that while the late service violated the Rules of Civil Procedure, the plaintiff had prior access to the report online and was not unduly prejudiced.

Applying Rule 1.04(1), the court prioritized the merits of the case over procedural formality and qualified the expert.

During a trial concerning the authenticity of a Norval Morrisseau painting, the intervenors brought a motion to qualify an art appraiser as an expert witness.

The plaintiff objected based on the proposed expert's lack of academic credentials, past business dealings with an intervenor, and the inadequacy of his expert report.

The court found that the appraiser's 43 years of industry experience was sufficient for qualification and that his past business dealings did not undermine his impartiality.

However, the court refused to qualify the expert because his one-page report was merely a conclusory certificate lacking methodology or reasoning, and it was served the day before his testimony, which would cause unfair surprise and prejudice to the plaintiff under Rule 53.03.

The proposed intervenors sought leave to intervene in an undefended trial concerning the authenticity of a painting purportedly by First Nations artist Norval Morrisseau.

The plaintiff opposed the motion.

The court granted leave to intervene to two corporate art collectors and an Indigenous artist, finding that the case straddled private and public issues and that the intervenors would provide necessary opposing evidence and represent Indigenous cultural interests in the absence of the defendants.

The motion by a fourth proposed intervenor was deemed moot.

The plaintiff brought a motion for contempt against four non-party respondents, alleging they harassed the plaintiff's proposed expert witness by writing to her university employers and publishing a defamatory blog.

The court found that one respondent's letters, while misguided, did not constitute contempt and dismissed the motion against him.

The court ordered two other respondents to cease and desist all communications with the expert's current and prospective employers, finding their use of pseudonyms and links to a denigrating blog was an improper attempt to discourage her from testifying.

The court declined to make a contempt finding at this stage and adjourned the request to take down the blog to allow for full argument on freedom of expression defenses.

No costs were awarded.