COURT FILE NO.: CV-09-1533

DATE: 20160226

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dino Deluca and Grant Vogeli

Plaintiffs

– and –

MacLaren Art Centre Inc.

Defendant

John J. Adair and Gordon McGuire, for the Plaintiff

Arnold B. Schwisberg, for the Defendant

HEARD: January 6 and 7, 2016

REASONS FOR DECISION

CHARNEY J.:

Introduction: Fake or Fortune?

[1] The plaintiffs in this case claim to have purchased an original plaster sculpture by the famous French sculptor Auguste Rodin. It was purchased in 1998 for US $62,500 from an art dealer living in Italy. The sculpture is titled Walking Man. The art dealer provided no provenance certification or information that might help verify the authenticity of the sculpture. The plaintiffs are unable to produce a cancelled cheque or other documentation to prove the purchase price.

[2] Walking Man was one of six Rodin plasters for which the plaintiffs entered into a conditional loan agreement in February 2000 with the defendant MacLaren Art Centre (“MAC”), which is a public art gallery in the city of Barrie, Ontario. The purpose of the loan agreement was to realize a significant tax benefit through the donation of the sculpture to the art gallery, subject to the approval of the Canadian Cultural Property and Export Review Board (CCPERB). If approved, the plaintiffs would have qualified for income tax credits of $532,500, approximately six times the purchase price of the sculpture.

[3] This was either a shrewd investment or an expensive gamble. It proved to be the latter.

[4] In June and July 2001, the Musée Rodin in France, wrote MAC and The Toronto Star warning that the sculptures in question, including Walking Man, “cannot be considered authentic.”

[5] In 2003 MAC received a series of correspondence from CCPERB raising further questions about Walking Man and the other affected sculptures. New issues had been discovered regarding the sculptures’ questionable provenance and authenticity, and their circuitous transportation to Canada. None of the crucial CCPERB questions could be answered. Therefore, the application for certification to CCPERB was withdrawn and the entire purpose of the transaction failed. In the end, title to the sculptures never transferred to MAC.

[6] MAC purported to terminate the loan agreement and sought to return Walking Man to its owners. This proved to be a long and difficult process that was interrupted when the Republic of France obtained an impounding order from the Ontario Superior Court of Justice to permit its own expert to inspect the Rodin sculptures. Walking Man was eventually shipped by MAC to a Toronto storage facility in November 2006.

[7] When the plaintiffs finally uncrated Walking Man in September 2007, they discovered that it had suffered significant damage and was beyond repair.

The Claim and Defence/Counterclaim

[8] The owners commenced an action by way of Statement of Claim on November 19, 2009 claiming damages in the amount of $500,000. MAC delivered a Statement of Defence and counterclaim claiming unreimbursed storage fees of approximately $8,000.

Motion for Summary Judgment

[9] MAC brought a motion for summary judgment. They sought to have the action dismissed on three primary grounds:

1. The plaintiffs missed the two year limitation period because the damage to Walking Man occurred late 2006, the plaintiffs’ agent knew of the damage to Walking Man at least as early as October 19, 2007, and the action was not commenced until more than two years later on November 19, 2009.

2. The damage occurred after MAC had terminated the loan agreement. Accordingly, MAC was acting as an involuntary bailee and is only liable for gross negligence. MAC argues that its handling of the sculpture did not fall below the standard of care.

3. The plaintiffs have not proven any damages. The appraisals on which the plaintiffs’ claim for damages is based presumed the authenticity of the sculpture. Given the unresolved controversy about the authenticity of Walking Man, these appraisals, like the sculpture itself, are worthless.

[10] MAC also sought summary judgment on its counterclaim for unreimbursed storage fees.

[11] The motion for summary judgment was originally heard in April and July 2013. On November 6, 2013 (Longo v. MacLaren 2013 ONSC 6902[^1]) DiTomaso J. found that there was no genuine issue requiring a trial on the limitation period issue, and that the action of the plaintiffs Deluca and Vogeli was statute barred and therefore dismissed (paras. 146 and 147). Having dismissed the action against MAC on the basis of the limitation period, it was unnecessary for him to decide the other two issues of liability and damages.

[12] DiTomaso J. also found that MAC was entitled to storage charges under the Loan Agreement in the amount of $8,522.55.

[13] The plaintiffs appealed this decision to the Court of Appeal for Ontario, which allowed the appeal with regard to both the claim and the counterclaim (Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246).

[14] With regard to the limitation period issue, the Court of Appeal determined that it was not clear, based on the record before the motion judge, that the appellants were aware of all of the information enumerated in s. 5(1)(a) of the Limitations Act, 2002, S.O.2002, c.24, Sch. B, prior to November 2008. Accordingly, the Court held (at para. 58):

The motion judge erred in concluding that there was no genuine issue requiring a trial as to whether the plaintiff’s action is statute barred. That issue can only be determined with the benefit of a fuller evidentiary record at trial.

[15] The Court of Appeal also set aside the judgment on the counterclaim, holding at para. 59,that while “the appellants have failed to establish any error on the part of the motion judge when he relied on the respondent’s evidence regarding the storage costs incurred”, the motions judge had not provided any analysis to establish that the plaintiffs were liable for those costs. The court stated at para. 60:

What is absent from the motion judge’s reasons is any legal analysis or findings of fact that establish the appellants’ liability for the costs. Implicit in his awarding judgment on the counterclaim is a finding that the appellants should have arranged to pick up the work. However, this was an area of significant conflict in the evidence.

[16] On April 17, 2015, DiTomaso J. heard a motion for directions and to continue the motion for summary judgment to determine the remaining issues. He ruled that given the decision of the Court of Appeal he was functus officio and was not seized of the motion.

[17] Accordingly, MAC seeks to proceed by way of Notice of Return of Motion to deal with the remaining two issues of liability and damages that were not dealt with by DiTomaso J.

[18] On August 27, 2015, the plaintiffs responded with their own cross-motion for summary judgment seeking a declaration that MAC is liable in breach of contract or, alternatively, negligence, and directing the trial of an issue on the quantum of damages.

[19] The defendant objects to the plaintiffs bringing this cross-motion so late in the game, and argue that it should be dismissed as an abuse of process. They take the position that they are prejudiced because the cross-motion was brought after the affidavits were filed and the cross-examinations were conducted. I heard the defendant’s argument on this objection at the beginning of the motion, and dismissed it. When a party brings a motion for summary judgment under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that party is taking the position that there is no genuine issue requiring a trial with respect to all or part of the claim on which summary judgment is sought. This is a double-edged sword. If the defendant takes the position that the court can determine liability without a trial, it takes the chance that the court will determine liability in the plaintiff’s favour. A party cannot bring a summary judgment motion on the issue of liability (as the defendant in this case did) and take the position that a trial is unnecessary only if determination of liability falls in its favour. A party that asks the court to determine liability without a trial must prepare for the motion on the assumption that the court will determine liability, in their favour or not, without a trial.

[20] In Demide v Attorney General of Canada et al., 2015 ONSC 3000, at paras. 31 to 38, Leach J. reviewed several cases in the wake of Hyrniak v. Mauldin, 2014 SCC 7 [2014] 1 S.C.R. 87, that confirm that:

The court does not require a cross-motion for summary judgment when it can decide the issue that was the subject matter of another party’s motion for summary judgment

When at least one party has invited the court to make a summary judgment determination, there is nothing in the wording of Rule 20.04(2) to limit the possibility of summary judgment to a decision in favour of the moving party alone.

For further discussion on this topic, see also: Landrie v. Congregation of the Most Holy Redeemer, 2014 ONSC 4008, 120 O.R. (3d) 768, at para. 51: and Singh v Trump, 2015 ONSC 4461, at para. 35.

[21] Accordingly, the defendant cannot be prejudiced by the plaintiffs’ cross-motion since the relief requested by the cross-motion was always a possible outcome of the defendant’s motion. Both the motion and the cross-motion may be considered on their merits.

[22] The effect of the plaintiffs’ cross-motion is that both parties agree to have the issue of liability determined by summary judgment. Even with this agreement, the court must be satisfied that it is appropriate to grant summary judgment (Rule 20.04(2)(b)). Only the defendant takes the position that summary judgment is appropriate for the determination of damages. The plaintiffs contend that damages require some sort of trial, although they have suggested that a case conference be held to determine the most efficient way forward. Finally, as a result of the Court of Appeal’s earlier decision, the limitation period issue must proceed to trial if the plaintiffs are successful on the issues of liability and damages.

Facts

The Loan Agreement

[23] The plaintiffs claim they purchased Walking Man in May, 1998 for $62,500 U.S. from Gary Snell, an art dealer living in Italy. The sculpture was one of “23 original Alex Rudier Foundry Plasters” held by Snell. They are unable to produce a cancelled cheque or any proof of purchase. The Plaintiffs obtained no provenance certification or information from Mr. Snell. MAC had no involvement in the purchase arrangements.

[24] The Canadian government had a program through Canada Customs and Revenue Agency whereby donors of legitimate artwork to certified art galleries and institutions such as MAC could obtain a tax credit equal to the value of the artwork. The Art Tax Credit Program required that the CCPERB certify the transaction before tax credits would be issued.

[25] Walking Man was one of six Rodin plasters for which the plaintiffs (and four others in their group) entered into conditional Loan Agreements with MAC on February 7, 2000. The intent of the agreement was to donate the sculptures to MAC for the purposes of realizing a significant tax benefit. Each of the three original owners (one later sold his share) received a tax receipt issued by MAC for $177,705 (for a total of $532,500) for the Walking Man donation. The value of the tax receipt was subject to approval by the CCPERB.

[26] The relevant terms of the Loan Agreement are set out below:

1. Terms of Agreement

This agreement operates from the time the Work [Walking Man] leaves the Lender’s premises, for the Exhibition, until it is returned to the Lender.

3. Standard of Care

Each Institution shall provide the Work with the same care and safekeeping as it provides comparable property of its own. The Lender shall be notified at once if damage or deterioration is noted.

6. Cost of shipping, etc.

The Institution [MAC] will pay all costs of handling and packing, including packing crates and packing materials, and of transporting the Work....

8. Return of Work

The Institution [MAC] has the right to return the Work at the termination of the Exhibition to the address on the face of this Agreement. If return is made to another address, at the Lender’s request, the Lender shall pay any additional costs. If the institution, after making reasonable efforts, is unable to return the Work within 60 days of termination, the Institution may place the Work in storage and charge the Lender for reasonable storage fees and cost of insurance. The Institution shall have a lien or right of retention for these storage fees and the cost of insurance. If the Work is not reclaimed within seven years, the Institution may thereafter elect to deem the work an unrestricted gift to the Institution, or take the Work as liquidated damages for the fees and costs incurred in storing the Work.

[27] The Loan Agreement indicated that the insurance value of Walking Man was US$277,500. This figure was based on two appraisals:

(a) From William O’Reilly dated April 28, 1999 estimating the value of Walking Man at US$250,000.

(b) From Stewart Waltzer , also dated 1999, estimating the value at US$305,000.

[28] The original O’Reilly appraisal simply set out the provenance of the sculptures from Rodin to the Rudier Foundry in Paris ending with a “private collection” in Italy. In a subsequent appraisal prepared in March of 2008,[^2] O’Reilly indicates that this statement of provenance was “to the best of my understanding, as supplied to me”, although he does not indicate who supplied this information to him. No one knows for sure. The plaintiffs’ witness acknowledged that Gary Snell, the art dealer who sold the sculpture to the plaintiffs, was a potential source of the information. The plaintiffs suggested no other source. Accordingly, I find that Mr. Snell was the source of information for both of O’Reilly’s appraisals. Mr. Snell, it will be recalled, provided no provenance or documentation of any kind when Walking Man was sold to the plaintiffs. We will return to Mr. Snell later.

[29] Mr. O’Reilly’s March 2008 appraisal also indicates that the “private collection” in Italy referred to in his original appraisal was a consortium known as “Gruppo Mundiale”. We will return to Gruppo Mundiale later.

[30] The Waltzer appraisal from 1999 was never produced, but an updated appraisal dated December 2002 was produced. This appraisal estimated the value to have increased to US$425,000. This appraisal was, however, subject to the disclaimer that the author was presuming the sculpture’s authenticity, a matter for which he could not vouch:

This appraisal does not vouch for the authenticity or condition of the work. I have not inspected the works…I have not seen letters of provenance or expert testimony regarding the authenticity of the these works…therefore I appraise these works as though they are real, by the hand of the artist, of correct provenance…I do not warrant the value of these works. I do not sanction any purchase.

[31] On May 10, 2000, Walking Man was shipped in a packing crate from Italy to Canada and arrived in Toronto on May 23, 2000 via New York City. It was initially sent to MAC’s storage facility, Pacific Art Services Ltd., in preparation for the MAC exhibit. Upon inspection there was some damage to the sculpture, and conservation measures were recommended by MAC and paid for by the owners.

[32] Walking Man was exhibited at MAC in Barrie in the fall of 2001.

The Controversy

[33] On July 31, 2001, the Toronto Star published a letter that had also been sent to MAC by Jacques Vilain, the Director of the Musée Rodin in Paris France. The letter was in response to a Toronto Star article the previous week celebrating a proposed world tour of the MAC Rodin collection. The letter set out the Musée Rodin’s position that the sculptures in question, including Walking Man, “cannot be considered authentic.”

[34] Since that letter was the catalyst for all subsequent events, I set out its contents in full:

As owner of the artist’s copyright, the Rodin Museum has written to both the Royal Ontario Museum and the MacLaren Art Centre in Barrie a number of times questioning, in the strongest possible language, the advisability of going ahead with this project.

As indicated in a letter to the MacLaren Art Centre, we have always maintained the collection in question cannot be considered authentic.

Some items are used foundry plaster casts, coated with a substance that made them easier to unmold – and softened them even more – while others are enlargements made after the artist’s death and therefore not used by Auguste Rodin.

I urge extreme caution in order to show respect for the sculptor’s work as well as safeguarding the reputation of your museum, in keeping with international regulations as set out in the International Council of Museums.

[35] As a result of this controversy the Rodin exhibition at MAC in Barrie in September and October 2001 (and the exhibition at the ROM) was unsuccessful due to a shortfall in ticket sales.

[36] Notwithstanding the controversy, and in accordance with the Loan Agreement, MAC applied to the CCPERB for certification of Walking Man (in addition to other works of art from other donors) on October 31, 2002.

[37] Given the controversy surrounding MAC’s Rodin collection, MAC commissioned a report by Professor Jacques de Caso of the University of California at Berkley to advise whether MAC should “accept a gift of fifty-two sculptures in plaster attributed to Auguste Rodin”. The report was provided on July 27, 2002 and sets out the author’s view of the artistic and “socio-educative” value of the entire collection.

[38] The report made no specific reference to Walking Man, and did not purport to express any opinion on the financial value of the collection as a whole or on any individual piece in the collection.

[39] The de Caso report recognized that “information about the provenance of the MacLaren plasters is scant and not as documented as one would wish”. It explained the role of the foundry plaster in the process of making bronze sculptures:

Foundry plasters…are proofs prepared by founders to make molds for casting in bronze…Foundry plasters are coated with release agents that remain visible after use as seen on most MacLaren plasters. On some MacLaren plasters the coating has been removed prior to the plasters’ arrival in Canada with the possible consequence of altering the proofs’ original surface characteristics.

[40] The report noted that “[f]oundry plasters rarely appear in the art trade and in public sales. They are unknown to museums.”

[41] The report recommended that MAC accept the collection as a gift because of its “educational potency” and “pedagogical benefits”. It is clear from the report that these benefits are premised on the entire collection of 52 pieces remaining together. There is no suggestion that any one piece on its own would merit this assessment.

[42] On March 19, 2003, MAC received a fax from the CCPERB with regard to the application for certification of the Rodin plasters. The letter stated:

We have reason to believe that Mr. Snell gained possession of some of the Rodin plasters that escaped being confiscated as a result of the Musée Rodin’s successful legal pursuit against the Rudier foundry, which was found guilty of making illicit copies of Rodin plasters belonging to the Musée Rodin…

[43] Gary Snell, it will be recalled, is the art dealer who sold Walking Man to the plaintiffs, and the likely source of O’Reilly’s information regarding its provenance. The letter than raises questions regarding the qualifications of the appraisers who authenticated the Rodins, as well as the validity of the appraisals themselves. The letter states:

Therefore, due to the lack of sales evidence to support a market for the MacLaren plasters, we request that you provide us with the purchase price paid by the donors for the works presented in the four applications…

[44] On April 30, 2003, William Moore, the Director of MAC who had organized the Rodin exhibit and the donation of sculptures by the plaintiffs, received a letter from counsel at the Department of Justice, Canada in relation to a request for assistance by the French Republic in relation to the allegations in respect of the MAC Rodin collection.

[45] The letter indicates that France was now conducting a “criminal investigation into the following alleged French offences:

• Artistic counterfeiting /forgery through editing or reproduction;

• Illegal exportation and importation of counterfeit works;

• False and misleading advertising;

• Possession of stolen property.”

[46] The letter also stated that the Rodin Museum:

Alleged that, contrary to French laws, Gary Snell and Gruppo Mundiale…falsely claimed that they were in possession of and owned original RODIN plasters…offered for sale, in France and elsewhere in the world, and sold works described as original works of RODIN that should be describes as ‘reproductions’.

[47] Gruppo Mundiale was the private collection in Italy that owned Walking Man before it was sold to the plaintiffs.

[48] The letter indicates that the French authorities requested that the collection be seized and that witnesses be interviewed about the plasters and bronzes exhibited. MAC agreed to give access to the Rodin sculptures to an agreed upon expert “with a view to determining whether they are authentic or not”.

[49] On August 15, 2003, MAC received another fax from the CCPERB raising new questions regarding the sculpture’s provenance and its transportation through England before arriving in Canada.

[50] Finally, on December 4, 2003, the CCPERB wrote to MAC to advise that:

[The CCPERB] is not in a position to continue its consideration of these applications until further information is provided to assist it in deliberating on the issues presented to it in these applications.

[51] The CCPERB requested information regarding the precise dates that the plasters were created, when they left France and under what circumstances, details about their sojourn and ownership in England, and how they were purchased by the Gruppo Mundiale. Importantly, the CCPERB requested “full and complete details with copies of invoices and other written documents relating to the purchase”. The donor plaintiffs were unable to answer any of these questions.

Termination of Loan Agreement

[52] Since the provenance and authenticity of Walking Man could not be established, MAC wrote to the plaintiff Vogeli on June 14, 2004 to terminate the loan agreement. The letter sited the questions posed by the CCPERB and the issues raised by the Republic of France, and stated:

The MacLaren Art Centre is currently facing severe financial constraints and, as such, we can no longer carry the cost of the insurance and storage fees for the plasters on loan to us. We intend to withdraw our application for certification as cultural property and return these plasters to you…Please note, that as a result of this, the conditions of the deed of gift, signed December 31, 2002, have not been met, and thus, the deed is null and void and transfer of title to the MacLaren Art Centre has not occurred. As a consequence, we would ask you to return both the deed of gift and the tax receipt issued by the MacLaren Art Centre as soon as possible.

[53] The letter than asked the plaintiff to “contact Elizabeth Zimnica, Registrar, as soon as possible, to make arrangements for these works to be returned to you.”

[54] MAC withdrew its CCPERB application the same day.

[55] On July 5, 2004, the plaintiffs’ agent, Martin Johnson, wrote to MAC on behalf of the plaintiffs, setting out a number of conditions for MAC to meet in order to “properly achieve the return of these pieces”. These conditions included “complete disclosure for the time they were in your care and control” (emphasis in original) and “all information in your possession”. One of the documents demanded by Johnson was a “Statement of Provenance – MacLaren’s statement of complete provenance for each piece including confidential owners”. This was, of course, a document that did not and had never existed.

[56] Pursuant to the Loan Agreement, MAC had “the right to return the Work at the termination of the Exhibition to the address on the face of this Agreement”. The difficulty with this, MAC claims, is that the front page of the Agreement contained four addresses: two for Dr. Wittenberg (one of the original partners) and one each for the plaintiffs Deluca and Vogeli. It is MAC’s position that it could not return the sculptures without a specific address, hence MAC’s request that the plaintiffs “make arrangements for these works to be returned”. Johnson’s letter offered no such arrangements.

International Criminal Investigation

[57] On November 16, 2004, the Department of Justice applied, on behalf of the Republic of France, to the Ontario Superior Court for an ex-parte impounding order allowing for the French government’s expert to inspect the Rodin sculptures “in order to prepare a report on the authenticity, origin and ownership of the bronzes and plasters”.

[58] From that date until the order was set aside by a subsequent Superior Court order dated December 21, 2005 (approximately one year), the plasters could not be moved or returned to their owners without authorization from a Canadian judge. The order also authorized Elizabeth Zimnica and another named employee of MAC “to repack [the plasters] once the examination is completed”.

[59] The impounding and investigation became the subject of protracted litigation, the history of which is set out in the Ontario Court of Appeal’s decision in Canada v. Foster (2006), 2006 38732 (ON CA), 274 DLR (4th) 253(C.A.). In the course of these proceedings the impounding order was terminated on December 21, 2005. The judge terminating the impounding order held that during the course of the examination by the French expert certain of the plasters were damaged. In setting aside the impounding order, the Superior Court required the Republic of France to indemnify the owners for any damage to the plasters occasioned by the inspection. The Court of Appeal’s decision, released on November 20, 2006, reversed this decision, holding (at para. 72) that the ordinary rules respecting criminal investigations applied:

Persons required to comply with a court order or process in criminal proceedings are expected to bear their own costs.

[60] The parties to the present case acknowledge that this decision is applicable to any damage caused to Walking Man as a result of the French investigation. Nor is there any dispute that additional damage to Walking Man occurred when it was shipped to Toronto on November 22, 2006. This summary judgment motion relates only to the November 2006 damage.

[61] The plaintiffs in this case were not parties to the proceedings before the Court of Appeal. Accordingly, there was nothing to prevent the plaintiffs from seeking the return of Walking Man after the impounding order was set aside on December 21, 2005.

[62] The results of the French investigation were sent to France pursuant to a Sending Order, dated December 21, 2005, and have never been released by the French government.

Transportation of Walking Man

[63] Since Walking Man was no longer on display at MAC, it (along with the other impugned Rodin sculptures) was shipped by MAC via government art carrier Exhibit Transportation Services (ETS), then part of the federal Department of Heritage, to its secured storage facility in Gatineau Quebec on October 1, 2003. That is where Walking Man was stored during the French investigation.

[64] Walking Man remained in the Gatineau facility until November 22, 2006. At that time the Gatineau facility was being wound up by the Canadian government, the Court of Appeal proceedings relating to the French investigation had been decided, and MAC had ETS ship Walking Man back to a secure art storage facility in Toronto (Pacific Art Services Ltd.) on November 22, 2006.

[65] It remained at this facility, uncrated, until it was inspected by professional conservator Susan Maltby on September 14, 2007, and the extensive damage was discovered. There is no dispute that the November 2006 move from Gatineau to Toronto resulted in significant damage to Walking Man, and that the damage was caused by inadequate packing material. This evidence was presented by the defendant’s expert, conservator Susan Maltby. While the value of Walking Man before it was damaged in November 2006 is disputed, there is no dispute that, whatever its previous value, the extensive damage to Walking Man has rendered it worthless.

[66] There is also no dispute that, throughout its travels, Walking Man was shipped in the same crate in which it arrived in Toronto from Italy. This is the crux of the liability issue: was MAC meeting the relevant standard of care by repacking Walking Man in the same crate, or did it have an obligation to repack it in a superior crate?

Legal Analysis

Authenticity of Walking Man

[67] As indicated above, both parties have brought a motion for summary judgement pursuant to Rule 20 of the Rules of Civil Procedure, asking the court to determine the liability issue. Only the defendant, MAC, asks the court to determine the damages issue.

[68] The difficulty I face is that these two issues are intertwined. What constitutes “reasonable care” will depend, in large part, on whether the sculpture was a valuable museum-quality original, or a “foundry plaster cast” of uncertain provenance and doubtful authenticity. Just as “a reasonable man will not show the same anxious care when handling an umbrella as when handling a loaded gun”[^3], the care required to transport a $500,000 original work of art would not be required to move a worthless reproduction. Accordingly, the competing evidence regarding reasonable care must be viewed through the lens of value, which is directly related to the issue of damages. In order to consider liability the court must first consider the value of Walking Man.

[69] A motion for summary judgment is appropriate only if the material provided on the motion “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” Hryniak v. Mauldin, supra, at para. 50.

[70] The principal factual dispute between the parties relates to the authenticity of Walking Man. That is not, however, a dispute that an Ontario court can resolve, either on a summary judgment motion or after a long trial. The authenticity of Walking Man can only be established by its acceptance in the art world. This requires the imprimatur of the Musée Rodin.

[71] Nor is authenticity of Walking Man a dispute that the court must resolve in order to apply the relevant legal principles in this case. While the parties dispute the authenticity of Walking Man, there is no dispute that its authenticity is disputed. In my view, the relevant legal principles can be applied on the basis of the following undisputed facts:

(a) The Musée Rodin has publicly stated that Walking Man “cannot be considered authentic”;

(b) The provenance and authenticity of Walking Man cannot be established by its owners;

(c) MAC withdrew its application to CCPERB for certification and the tax receipts MAC issued were never approved by CCPERB; and,

(d) Walking Man was withdrawn from public display by MAC because of the controversy related to its authenticity.

Value of Walking Man

[72] Given these undisputed facts, what is the estimated value of Walking Man had it not been damaged in November 2006? This is where the record on this motion is sorely lacking.

[73] The plaintiffs provided appraisals that are based on the assumption that Walking Man is an authentic, museum-quality original with established provenance. This assumption is invalid; the authenticity of Walking Man is contentious, its provenance uncertain. For an appraisal to have any evidentiary value in this case it must consider the effect of the controversy on the value of the sculpture. The plaintiffs provided no such appraisal.

[74] Neither, however, has the defendant. The cross-examination of the plaintiffs’ expert witness (William Moore) clearly establishes that the controversy surrounding authenticity and provenance reduces value, although he had no idea what its value would be if it was undamaged. The defendant did not, however, file its own appraisal. Instead, it asks the court to infer from the plaintiffs’ failure to support its position with a proper valuation that Walking Man has only nominal value.

[75] If this were a trial, and the only evidence of value were the appraisals relied on by the plaintiffs on this motion, I would have no hesitation dismissing the plaintiff’s claim on the basis that it had failed to prove damages. But this proceeding began as the defendant’s motion for summary judgment, and the onus is on the party who brings the motion for summary judgment to produce an affidavit (or other evidence) in support of its position (Rule 20.02(1)). It is only when the moving party produces such an affidavit (or other evidence) that the responding party is obliged under Rule 20.02(2) to reply with its own affidavit evidence.

[76] The plaintiffs take the position that they had nothing to reply to with respect to the value of Walking Man. The defendant in this summary judgment motion cannot simply call on the plaintiff to prove the alleged damages. The defendant must file evidence to support its position that there are no damages because the damaged sculpture was worthless.

[77] On the other hand, the plaintiffs have now brought their own cross-motion for summary judgment on the issue of liability, and so there is an onus on them to establish its value for the purpose of determining reasonable care.

[78] Given the fact that both parties have requested that the court decide the issue of liability on this motion for summary judgment:

[T]he court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial. (Landrie v. Congregation of the Most Holy Redeemer, 2014 ONSC 4008, at para. 47)

[79] From an evidentiary perspective, both parties can be taken as putting their best case forward.

[80] What then is the value of Walking Man for the purposes of establishing reasonable care?

[81] The plaintiffs claim to have purchased Walking Man for US$62,500. They purchased it without the benefit of provenance certification or information that might help verify its authenticity. Mr. Vogeli acknowledged that his “participation in the program was not without risk” and “was largely, but not entirely, driven by tax considerations”. At the time they purchased Walking Man the plaintiffs hoped to obtain a significant tax credit. That is why they were prepared to pay $62,500 for a work without some sort of certification. It is reasonable to infer that if the art dealer, Gary Snell, had the proper certification for Walking Man he would have sold it for an amount much closer to the appraisal values proffered by O’Reilly and Waltzer.

[82] Given the four undisputed facts set out in para. 71 above, it is reasonable to infer, and I so find, that, even undamaged, Walking Man would now be worth considerably less than the US$62,500 paid by the plaintiffs. With its authenticity questioned by the Musée Rodin, no papers or provenance, no chance for a tax credit, and no museum interested in displaying it, I infer that, even undamaged, Walking Man has no significant monetary value and no value as a museum display object.

Reasonable Care

[83] As indicated above, there is no dispute that, throughout its travels, Walking Man was shipped in the same crate in which it arrived in Toronto from Italy. The crux of the liability issue is whether MAC met the relevant standard of care by repacking Walking Man in the same crate, or whether MAC had an obligation to repack it in a superior crate.

[84] MAC relies on an email it sent on November 24, 1999 (before Walking Man was shipped from Italy to Canada) to Celia Martin, who was acting as the agent for the plaintiffs when the loan agreement was being negotiated.

[85] The email was in response to an earlier email from Ms. Martin to William Moore, who was the director of MAC at the time, and the driving force behind MAC’s efforts to assemble the Rodin sculpture collection. In this email Ms. Martin requested that Mr. Moore provide:

The text I will need to include in any tour agreements or related documents to ensure the collection of Rodins are moved and stored while on tour (on behalf of the purchaser) with the requirements necessary for the safety and preservation of the collection.

[86] Mr. Moore replied, explaining that there was, as yet, no tour planned. He continued stating:

These are very fragile items and do require special care…It is understood by us that before transfer to the MacLaren as a loan (toward a donation) that: the works are in museum-quality crating consistent with the fragility of these objects.

[87] MAC’s position is that this email confirms its understanding that the plaintiffs had an obligation to ensure that Walking Man was packed in museum-quality crating consistent with it fragility. At the time this email was written, the plaintiffs believed that Walking Man was a museum-quality sculpture potentially worth as much as $300,000 (the O’Reilly and Waltzer appraisals predate this email). MAC could reasonably assume and act on the understanding that the plaintiffs would take reasonable care of their own investment and ensure that it was packed appropriately. MAC made this understanding explicit in this email. MAC should not be held to a higher standard of care than the plaintiffs themselves.

[88] On the other hand, the plaintiffs rely on a letter sent the very next day by Mary Reid, Registrar and Assistant Curator at MAC to Ms. Martin, providing the “requested wording for the purchase agreement in regards to transport requirements”. This wording was intended to cover the “impending tour of the Rodin sculptures” – a tour that never happened. The proposed wording states:

Once the impending tour of the Rodin plasters has been confirmed, the McLaren Art Centre shall ensure that the works listed in this agreement will be transported in a manner appropriate to professional public gallery standards of care and safekeeping…Watertight sealed crates with extensive padding free of any pollutants and built in support at the pressure points of the works will be constructed specifically for each work and employed. The crates will be handled with excessive care and will not be exposed to undue vibrations, stress or physical force.

[89] This letter suggests that, at least in the event of a tour, MAC knew that it had an obligation to ensure packaging “appropriate to professional public gallery standards of care and safekeeping”. Since there was never a tour, however, this proposed wording was never made part of any agreement between the parties. Accordingly, I find that it cannot be the basis for establishing a duty of care in this case.

[90] The Loan Agreement itself contained language in relation to MAC’s duty of care. It states:

3. Standard of Care

Each Institution shall provide the Work with the same care and safekeeping as it provides comparable property of its own. The Lender shall be notified at once if damage or deterioration is noted.

[91] The immediate difficulty with this agreement is to determine the meaning of the term “comparable property”. Again, this relates, at least in part, to the value of the object and whether it is a museum-quality original.

[92] The plaintiffs rely on two expert reports to support their position that MAC’s failure to repackage Walking Man fell below the applicable standard of care.

[93] The first report is by Susan Maltby, the professional conservator who first discovered the damage to Walking Man when it was uncrated in September 2007. She notes that she cannot comment on the authenticity or provenance of the sculpture. Both sides accept her qualifications and expertise.

[94] Ms. Maltby had first examined Walking Man in 2001 to prepare it for public display by MAC. Her report in relation to the 2007 inspection states: “Once the crate was opened and the sculpture unwrapped, it was clear that its condition had changed considerably since I had last seen it in 2001.”

[95] She noted that there were pre-existing cracks on both legs of Walking Man which put the sculpture at risk of further damage, particularly given that it was made of hard and brittle plaster. Her report concludes:

When Walking Man was uncrated in 2007 I was surprised to see how little padding was in the crate, particularly at the bottom. Packing an object with insufficient padding and cushioning material make it vulnerable to damage and/or breakage. The amount of padding material present in the Walking Man crate did not appear, in my professional opinion, to be sufficient to protect the plaster appropriately. If there is insufficient cushioning and/or it is not suitable material being packed, the object will absorb shock often leading to damage. Every time an object is moved, particularly if it is vulnerable, it is put at risk. I personally do not know how many times Walking Man was moved /transported since 2001. I think it is fair to assume that the damage to Walking Man postdates the Perrault [Government of France] inspection [of 2004]…In summary, my findings are…Walking Man’s crate, as of September 14, 2007, did not provide adequate protection from damage.

[96] A similar assessment is contained in the affidavit of former MAC director William Moore. This, it will be recalled, is the same Mr. Moore who, in November 1999, advised the agents for the plaintiffs:

It is understood by us that before transfer to the MacLaren as a loan (toward a donation) that: the works are in museum-quality crating consistent with the fragility of these objects.

[97] His affidavit sworn November 2012 states that given MAC’s knowledge that Walking Man was fragile and its condition was deteriorating:

[T]he packing materials and techniques employed by MacLaren staff before shipping Walking Man to Gatineau were grossly inadequate. In particular, the construction of the crate did not adequately relieve pressure to the base of the work. Had Walking Man been properly packed by MacLaren staff in a manner consistent with transporting a fragile work clearly in need of repair, Walking Man would not have sustained the profound extent of damage that it did. In my experience, faced with the need to transport a fragile plaster, it is standard museum practice to have the plaster examined by a conservator who specializes in plaster conservation prior to any move.

[98] Mr. Moore was cross-examined with respect his affidavit of November 2012. He conceded that there was no need to crate Walking Man in order to sustain the rigours of a world tour, since the proposed world tour never materialized. The plaintiffs were unable to produce any documents that expressed concern about the adequacy of the Walking Man crate and materials prior to 2004 (when MAC purported to terminate the loan agreement and sought to return the sculpture to its owners). There was no evidence that Walking Man had suffered any damage when it was shipped from Italy to Barrie via New York and Toronto in its original packing crate.

[99] Had Walking Man been a museum-quality original worth in excess of $250,000, the evidence of Maltby and Moore regarding “standard museum practice” would support the plaintiff’s position. A good argument can be made that, regardless of the adequacy of the original packing material, a museum or art gallery has a duty to improve upon the owner’s original packing and treat a valuable work of art with the level of care proposed by those witnesses.

[100] In my opinion “the same anxious care” cannot be applied to an object that has no significant monetary value and no value as a museum display object.

Standard of Care

[101] MAC contends that its expressed intention to terminate the Loan Agreement on June 14, 2004, and return Walking Man to the plaintiffs was frustrated by the plaintiffs’ failure to provide a return address or take any steps to facilitate the sculpture’s return. As a result, it argues, MAC became an involuntary bailee, and as such is liable only for intentional or reckless damage.

[102] This issue was dealt with tangentially by the Court of Appeal in its decision in the Longo case. As indicated at para. 15 of this decision, the Court of Appeal reversed DiTomaso J.’s decision regarding storage costs because there was conflicting evidence regarding if and when the plaintiffs had a duty to arrange for the return of Walking Man. The Court of Appeal stated at para. 60 of its decision:

Implicit in his awarding judgment on the counterclaim is a finding that the appellants should have arranged to pick up the work. However, this was an area of significant conflict in the evidence.

[103] While this continues to be an area of significant conflict of evidence, Rule 20.04(2.1) expressly authorizes the court to weigh and evaluate the evidence and draw reasonable inferences from the evidence. This is particularly the case where, as here, both parties have asked the court to decide the liability issue by way of summary judgment (Rule 20.04(2)(b)). Accordingly, I propose to review the conflicting evidence for the purposes of deciding the liability issue.

[104] MAC’s June 14, 2004, letter to the plaintiff Vogeli asked that he contact the MAC Registrar “as soon as possible, to make arrangements for these works to be returned to you”. The plaintiff’s response on July 5, 2004, was to request a list of information and documents “to properly achieve the return of these works”. This demand for information and documentation (some of which did not exist) was not a condition of the February 7, 2000, loan agreement which gave MAC “the right to return the Work at the termination of the Exhibition”.

[105] Indeed, it is clear from the plaintiffs’ July 5, 2004, reply letter that they did not really want the sculptures back. What they wanted was their tax receipt. The letter stated:

It was the MacLaren that wanted these works in the first place. My clients and I clearly would have been a lot happier had we been able to continue with their certification, and we are now forced to look to other alternatives.

[106] There is no evidence from the plaintiffs that any alternatives were ever identified in the three years between July 5, 2004, and the date that the damages were discovered in September 2007. It is reasonable to infer that if Walking Man had any significant value the plaintiffs would have identified some alternatives to leaving it in storage. This is an additional factor that I have considered in my determination that Walking Man had no significant monetary value and no value as a museum display object even before it was damaged.

[107] The return of the work was also frustrated by the subsequent impounding order of November 16, 2004. From that date until the impounding order was terminated on December 21, 2005, the plaster could not be moved anywhere. The plaintiffs did not, however, take any steps between June 14, 2004, and November 16, 2004, to make arrangements for the plaster to be returned to them. Likewise, after December 21, 2005, the plaintiffs took no steps to seek the return of the plaster.

[108] On May 11, 2006, MAC wrote once again to the plaintiffs’ agent, Martin Johnson, reminding of MAC’s intention to return the plasters in 2004, asking to be reimbursed for storage and insurance costs from December 1, 2004, to June 15, 2006, and advising that effective June 15, 2006, MAC would no longer be able to carry the costs of storage and insurance. The letter concluded “Please make arrangements to pick up your plasters or take over the storage costs at your earliest convenience.” There appears to have been no response from the plaintiffs to this letter.

[109] As indicated above, having received no reply, and with the ETS storage facility in Gatineau being wound up by the Canadian government, MAC had Walking Man transported from Gatineau to Toronto on November 22, 2006, where it remained until it was uncrated by Ms. Maltby in September 2007.

[110] MAC argues that the plaintiffs’ failure to cooperate with MAC’s request to return Walking Man transformed MAC into an involuntary bailee. The standard of care for an involuntary bailee is less than that of a voluntary bailee, and is limited to “refraining from intentional or reckless damage”. Even taking into account the period covered by the impounding order between November 2004 and December 2005, the plaintiffs had sufficient opportunity after being given notice of termination on June 14, 2004, and again on May 11, 2006, to make arrangements for the return of Walking Man.

[111] MAC relies by analogy on cases in which a tenant refuses to retrieve personal property after a lease has been terminated. These authorities provide that if “the tenant has not responded to requests to remove the goods, the landlord will have to take one of several options. An involuntary bailee owes a certain duty of care to the owner of goods to refrain from intentional or reckless damage to the goods held.” (Andriano v. Napa Valley Plaza Inc., 2010 ONSC 5492 at para. 13, citing Richard Olsen, A Commercial Tenancy Handbook (Toronto; Carswell, 2004) at 6-25).

[112] In Booy v. Genstar, 1998 5058 (BCSC), the British Columbia Supreme Court summarized the legal principle as follows at para. 30:

Even if the goods had not been abandoned the standard as an involuntary bailee would be a low one requiring no more than due care and diligence for the goods upon which it took possession. The duty as a gratuitous bailee is only to refrain from intentional and possibly reckless damage and this standard falls below that of gross negligence. See Landry v. Grunwald, [1986] B.C.J. No. 1889 (S.C.), Tech-North Consulting Group Inc. v. B.C., [1997] B.C.J. No. 1148 (S.C.).

[113] MAC takes the position that it met the duty of care owed by an involuntary bailee by repacking Walking Man in the same crate in which it received it from the plaintiffs. In the alternative, MAC argues that this repacking also met the duty of care owed under the Loan Agreement, because Walking Man was not a museum-quality original requiring the level of care proposed by Maltby and Moore. MAC points out that the original crating material was deemed sufficient by the plaintiffs’ agents in Italy, and that Walking Man arrived safely in Barrie.

[114] The plaintiffs contend that para. 1 of the Loan Agreement provides that the agreement operates from the time Walking Man “leaves the Lender’s premises, for the Exhibition, until it is returned to the Lender”. Since the plaster was not returned before it was damaged in November 2006, the agreement was still in effect, and MAC was legally obligated to “provide the Work with the same care and safekeeping as it provides comparable property of its own.”

[115] The difficulty with this argument is that para. 8 of the Loan Agreement expressly defines “return of work” and provides that:

If the Institution, after making reasonable efforts, is unable to return the Work within 60 days of termination, the Institution may place the work in storage and charge the Lender for reasonable storage fees and the cost of insurance.

[116] This paragraph contemplates that the agreement is terminated even if MAC is unable to return the sculpture. The proper interpretation of this provision is that the agreement is terminated upon the return of the work or, upon termination, 60 days after making reasonable efforts to return the work. In these latter circumstances, return of Walking Man to the plaintiffs is not a condition precedent to the termination of the agreement.

[117] The plaintiffs also take the position that it was the impounding order of November 16, 2004, not their lack of cooperation, that frustrated the return of Walking Man. This is supported by MAC’s letter to the plaintiffs dated May 11, 2006, which stated:

It had been our intention to return your plasters to you in December 2004…Those plans were stalled when the Department of Justice took out the Court Order in December 2004, effectively preventing us from moving the work.

[118] There was never any indication from MAC prior to the commencement of this litigation that the plaintiffs’ failure to cooperate was responsible for the failure to return the plaster before November 22, 2006.

[119] The plaintiffs take the position that regardless of whether the duty of care required by MAC was to take reasonable steps to protect Walking Man (ie. the contract/tort duty) or simply not to act recklessly (as an involuntary bailee), MAC breached the standard of care. MAC had no policies or procedures in place with respect to packing and shipping works. It had no one on staff to properly attend to shipping the piece from Gatineau to Toronto. The plaintiffs rely on the expert reports of Maltby and Moore regarding the inadequate packing of Walking Man.

[120] I reject the plaintiffs’ position in this regard because it is based on the premise that Walking Man is a valuable museum-quality sculpture worth in excess of $250,000. As previously indicated, if that premise were valid a good argument could be made that MAC had an elevated duty of care commensurate with the value of the sculpture. For the reasons given above, however, I reject the plaintiffs’ position that Walking Man is a valuable museum-quality sculpture.

Conclusion on Liability

[121] Having reviewed the conflicting evidence on the issue of liability, I find that MAC’s position is to be preferred and the Loan Agreement was no longer in force when the damages to Walking Man were sustained on November 22, 2006. For the reasons given below, I find that the Loan Agreement was terminated by July 11, 2006.

[122] Under the Loan Agreement MAC had a unilateral right to return Walking Man at the termination of the Exhibition, and the plaintiffs had a correlative duty to cooperate in its return. In addition, the plaintiffs had no right under the agreement to delay the return of the plaster by imposing conditions precedent. Accordingly, the plaintiffs had no right to require that MAC provide them with certain information or documents before they cooperated in the plaster’s return.

[123] Based on the evidence presented in this motion, I find that MAC had made it perfectly clear to the plaintiffs that it wanted them to take back the plaster. The plaintiffs understood this, but took no steps, either before the impounding order was granted or after it was terminated, to offer any arrangements for its return. I agree that MAC might have been more aggressive in its insistence that Walking Man be returned, but by the date of MAC’s second letter to the plaintiffs on May 11, 2006, its position was clear. This second letter constituted “reasonable efforts” on the part of MAC to return the work in accordance with para. 8 of the Loan Agreement. The plaintiff’s failure to offer any reply to this letter in the 6 months before Walking Man was shipped to Toronto for storage is sufficient to frustrate the terms of the Loan Agreement. The plaintiffs could not prolong MAC’s liability under the agreement by declining to provide arrangements for the plaster’s return when requested to do so by MAC.

[124] Accordingly, I find that the Loan Agreement had been terminated and, as of November 22, 2006, when MAC packed Walking Man back into its crate and shipped it to Toronto for storage, MAC was acting as an involuntary bailee and its duty of care was to refrain from intentional or reckless damage. In my opinion there is no evidence on this motion that returning Walking Man in the same packing material in which it had received it fell below this applicable standard of care.

[125] Having concluded that Walking Man had no significant monetary value and no value as a museum display object, I conclude that MAC did not violate its duty of care as an involuntary bailee. There must be some proportionality between the duty of care and the value of the damaged object. In this case MAC acted reasonably by returning the plaster in the same crate in which it had received it. MAC cannot be held to the standard of care that may be required for the shipping and handling of a valuable museum-quality work of art.

Damages

[126] The defendant, MAC, has also sought summary judgment with respect to the issue of damages. The plaintiffs resist this claim. As indicated above (paras. 73 and 74), neither party has provided me with evidence of the value of Walking Man immediately before it was damaged on November 22, 2006. I find it somewhat puzzling that the parties have expended substantial legal fees on this case, but have not obtained expert evidence to determine whether the game is worth the candle.

[127] As indicated above at para. 82, based on the evidence provided on this motion, I have inferred that Walking Man is worth considerably less than the US$62,500 originally paid by the plaintiffs, and that Walking Man has no significant monetary value and no value as a museum display object. Beyond this I cannot go on the record provided by the parties.

Directions

[128] It may be that, in light of my decision on liability, the issue of damages is moot. I recognize, however, that there is a preference to decide all issues before the matter proceeds to an appellate court in order to prevent the sort of piecemeal appeals that have already characterized this case. Any efficiencies and savings of the summary judgment process are easily lost if the case keeps bouncing back and forth between the Superior Court and the Court of Appeal.

[129] Accordingly, if either party remains interested in pursuing the damages issue, counsel may advise within 30 days of this decision and I will schedule a case conference in order to canvas with counsel the most appropriate way of moving forward on this issue. My initial view is that the issue of damages could be expeditiously resolved on the basis of expert affidavit evidence and cross-examination without the need for oral evidence, but I am open to consider other procedures proposed by counsel.

[130] The issue of the limitation period is also outstanding and according to the Court of Appeal requires the trial of an issue (para. 58 of the Court of Appeal decision). Should the parties wish to continue with this case in light of my decision on liability, the case conference should also deal with the issue of scheduling a trial for the purposes of determining the application of the limitation period.

Counter-Claim

[131] With respect to the issue of the counter-claim, I have already found that by May 11, 2006, MAC’s intention to terminate the agreement was clear and that its letter to the plaintiffs’ agent of that date constituted “reasonable efforts” to return Walking Man in accordance with para. 8 of the Loan Agreement. Based on this analysis, MAC is entitled to storage costs from July 11, 2006 (60 days from the termination date) to the date that Walking Man was finally retrieved by the plaintiffs in August 2014 (96 months).

[132] DiTomaso J. determined that the evidence supported a claim for storage costs of $96.30 per month or, in the alternative, the sum of $288.90 per quarter. The Court of Appeal (at para. 59) decided that the appellant (the plaintiffs in the present motion) “failed to establish any error on the part of the motion judge when he relied on the respondent’s evidence regarding the storage costs incurred”. On this basis I am adopting the storage costs found by DiTomaso J, as the evidence on this issue was no different in the motion before me.

[133] In total there shall be judgment in the amount of $9,244.80 against the plaintiffs, jointly and severally in favour of MAC. MAC is entitled to post-judgment interest at the prevailing rate of interest set out in the Courts of Justice Act, R.S.O. 1990, c. C.43.

Costs

[134] If the parties are unable to resolve the issue of costs within 30 days, this issue shall be determined by way of written submissions to be served and filed at the filing office with proof of service. Counsel for the defendant shall provide a concise statement of position no longer than 3 pages, not including any costs outline, draft bill of costs and any offers to settle, no later than 30 days after this decision is released. Counsel for the plaintiffs may reply on the same terms no later than 15 days thereafter.

Justice R.E. Charney

Released: February 26, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dino Deluca and Grant Vogeli

Plaintiffs

– and –

MacLaren Art Centre Inc.

Defendant

REASONS FOR DECISION

Justice R.E. Charney

Released: February 26, 2016

[^1]: At that time the case was called Longo because the action commenced by the plaintiffs Deluca and Vogeli (owners of Walking Man) was consolidated with three parallel actions commenced concurrently by Deluca and Vogeli, as well as other owners (including Longo) of five other sculptures attributable to Rodin. It was claimed that all of the sculptures were damaged and that MAC was responsible. This was an error as only Walking Man was damaged. Longo and the other owners withdrew from the claim, leaving Deluca and Vogeli the only plaintiffs; the style of cause was amended accordingly.

[^2]: This appraisal was prepared after the November 2006 damages to Walking Man were discovered by the plaintiffs to assess the post-damage value of the sculpture.

[^3]: R.F.V. Heuston and R.A. Buckley, Salmond & Heuston on the Law of Torts, 21st ed. (London: Sweet & Maxwell, 1996) at 223. See also: Allen M. Linden & Bruce Feldthusen, Canadian Tort Law, 9th ed. (Toronto: LexisNexis, 2011) at 138: “When the potential loss is great, the creation of even a slight risk may give rise to liability.”