Michael Panacci

The plaintiff brought a motion to strike the defendants' statement of defence for failure to comply with previous court orders, including non-payment of costs, and sought leave to amend its statement of claim.

The court declined to strike the defence immediately but ordered that it could be struck if the defendants failed to pay the outstanding costs within 30 days.

The court also granted the plaintiff leave to amend its statement of claim, finding no prejudice to the defendants, and awarded the plaintiff $12,000 in costs for the motion.

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.

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.