Jonathan Sommer

The plaintiff, a lawyer, brought actions against the defendants for a prolonged campaign of internet defamation and harassment related to his involvement in art forgery litigation.

After the defendants' statements of defence were struck and they were noted in default, the court held a damages hearing.

The court found the defamation allegations were properly pleaded and awarded the plaintiff $300,000 in general damages, $100,000 in aggravated damages, and $50,000 in punitive damages, plus costs.

The court also addressed the defendants' ongoing defiance of court orders and unexecuted bench warrants for contempt.

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 at the outset of trial to permit a documentary filmmaker to videotape the trial proceedings, which concerned the authenticity of a Norval Morrisseau painting.

Despite the consent of the Plaintiff's counsel and the Intervenors' counsel, the motion was dismissed.

The court found no precedent for such filming under section 136(3)(c) of the Courts of Justice Act, which generally prohibits filming but allows exceptions for educational purposes.

The judge expressed concerns about the potential adverse impact on witnesses, given prior contentious issues related to the art, and cited Supreme Court of Canada jurisprudence emphasizing witness anxiety and the importance of testimony being directed to the court, not a media audience.

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.

At the opening of an undefended trial concerning the authenticity of a purported Norval Morrisseau painting, several non-parties brought motions to intervene and adjourn the trial.

The plaintiff alleged the painting he purchased from the defendants was a forgery, and the defendants had abandoned their defense.

The court dismissed one proposed intervener's motion to intervene as a friend of the court, finding his past conduct and personal attacks on the plaintiff's counsel and expert witness demonstrated he could not make a useful, objective contribution.

However, the court granted a short adjournment to two other proposed interveners to file proper materials for leave to intervene, noting the broader public interest in the authenticity of Morrisseau paintings and the benefit of having an opposing side at trial.

The adjournment was granted on the condition that these proposed interveners pay the plaintiff's thrown-away costs.