Court File and Parties
COURT FILE NO.: 16-68323 DATE: 20160803 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gina Disabatino, Applicant AND National Gallery of Canada and Frederic Bouin, Respondents
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: David Cutler, for the Applicant Todd Burke, for the Respondents
HEARD: July 15, 2016
Amended Endorsement
Amendment occurs at para. 6, item 6. Mr. Beaudoin is changed to Mr. Bouin
[1] This application involves a request for the enforcement of a Letter of Request for Judicial Assistance issued by a court of the State of Florida.
[2] The Letter of Request relates to ongoing Florida matrimonial litigation between the Applicant and Frederic Bouin. Mr. Bouin’s ownership of two paintings by the French Impressionist painter, Claude Monet, worth millions of dollars, is in issue. In depositions in the Florida proceedings, Mr. Bouin has denied ownership of the paintings.
[3] It is accepted that Mr. Bouin recently loaned one of the Monet paintings to the Respondent National Gallery of Canada (“NGC”) for their inclusion in an exhibition presented by the NGC. The original plan called for Mr. Bouin to loan two paintings, but only one – “The Banks of the Seine near the Bridge of Argenteuil” was received for the exhibition.
[4] The Letter of Request for Judicial Assistance issued by Judge John L. Phillips of the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County Florida in the United States of America dated March 17, 2016 at paragraph 7 (d) sets out the reason for the information requested:
relevant testimonial and documentary evidence necessary to equitably distribute the marital estate was in the possession of the records custodian of the National Gallery of Canada/Musée des Beaux Arts du Canada; and
The evidence is not obtainable by other means of discovery in the United States.
[5] The application was originally heard on June 21, 2016 by Justice McLean of this Court who ordered the NGC to produce all of the relevant documents in his possession. The NGC never opposed that aspect of the Letter of Request but required an undertaking that the documents disclosed would not be used for any other purpose except for the matrimonial litigation in Florida. The NGC opposed in the request for oral discovery of one of its representatives.
[6] In response to the application, Garth-Matthew Symonds, Director, Corporate Secretariat and Ministerial Liaison and ATIP coordinator for the NGC, swore an affidavit dated June 15, 2016. In that affidavit, he deposes that several employees of the NGC were in contact with Mr. Bouin in an attempt to borrow two Monet paintings and that the NGC was able to borrow only one. More particularly, Mr. Symonds swore that:
At no point in this process did the NGC receive title of ownership or other proof from Mr. Bouin that he owned either painting.
On or about January 28, 2016, Mr. Bouin informed the NGC that the painting had been sold.
On or about February 2, 2016, the NGC sought confirmation of Ms. Witt’s name, her coordinates, the date the painting was sold and proof of transfer of the painting from Mr. Bouin.
On or about February 2, 2016, the NGC received a response e-mail from Mr. Bouin stating that the painting was to be shipped to Ms. Witt at the conclusion of the exhibition.
As of June 15, 2016, I have no additional information in relation to Ms. Witt.
[7] Mr. Symonds was not cross-examined and his evidence remains unchallenged. The application was adjourned from the June 21st date in order to permit the Applicant to determine whether or not she still wished to pursue an oral examination of a representative to the NGC after her review of the documentation and to argue the matter of costs. The Applicant maintains that the oral examination is necessary and the NGC continues to oppose that aspect of the request.
The Test
[8] Before an order giving effect to letters rogatory will be made, the evidence (including the letters rogatory) must establish that: [1]
the evidence sought is relevant;
the evidence sought is necessary for trial will be adduced at trial, admissible;
the evidence is not otherwise obtainable;
the order sought is not contrary to public policy;
the documents sought are identified with reasonable specificity;
the order sought is not unduly burdensome, having in mind with the relevant witnesses would be required to do, and produce, were the action to be tried here.
[9] These six factors have been described as “useful guideposts” and not necessarily as “preconditions” before Letters of Request are enforced. The NGC submits that the first three factors have not been met in this case.
The relevance of the evidence
[10] The affidavit evidence of Mr. Symonds is clear that the directors, officers, and employees of the NGC have no relevant information beyond what was contained in the documents. The NGC has no information, in the form of documents or knowledge, demonstrating that Mr. Bouin does or does not own the Monet paintings in question. It has produced an indemnity agreement wherein Mr. Bouin is identified as the “owner” of the painting in issue and that Mr. Bouin signed the document as “owner.” He is identified as the “lender” in the Exhibition Loan Agreement and as the “certificate holder” on a Certificate of Insurance. There is no contradiction with Mr. Symonds’ sworn statement that the NGC did not receive title of ownership or other proof from Mr. Bouin that he owned either of the paintings he proposed to loan to the gallery. The Applicant has failed to demonstrate that the examination evidence she seeks is relevant. An examination of any representative of the NGC would not provide any proof of ownership of the artworks in question.
Is the evidence necessary?
[11] Although the Supreme Court of Canada held in R. v. Zingre, 1981 SCC 32, [1981] 2 S.C.R. 392, that a Letter of Request could be enforced even for discovery purposes, here, the Letter of Request makes it clear that the purpose is for use at trial. As the evidence sought to be obtained on examination is not relevant, the evidence will not be adduced at trial.
Is the evidence sought otherwise obtainable?
[12] Mr. Bouin is available for examination in the US proceeding. All of the documents are either correspondence directly with Mr. Bouin or documents created in relation to Mr. Bouin’s loan to the NGC about which Mr. Bouin will have knowledge. The “otherwise unobtainable” criterion requires an investigation into whether the evidence of the same value is possessed only by the targeted witness. The criterion means that evidence of the same value as that sought from the person to be examined cannot be otherwise obtained. [2]
[13] There is no evidence to suggest that an examination of an officer of the NGC in relation to the documents will yield or provide better evidence than is available from Mr. Bouin. In her affidavit of June 20, 2016, Trisha P. Armstrong, Ms. Disabatino’s attorney, deposes that an examination of NGC representative “may” be necessary to confirm the authenticity of the documents produced and that it “is possible” that the documentation produced may not be admissible into evidence at trial pursuant to Florida’s Rules of Evidence. As I have already concluded that Mr. Bouin should be further examined, the authenticity of the documents can be put to him at that time. In any event, authenticity may be established without the need of an oral examination.
[14] I recognize that in the interest of international comity, Canadian courts have demonstrated a predisposition to accommodate requests made by foreign courts but having regard to the record before me, I decline to order the further relief requested.
Mr. Justice Robert N. Beaudoin Date: August 3, 2016
[2] McFadden Lyon Rouse LLC v. Lookkin, 2012 ONSC 2243 at para. 22 citing AstraZeneca LP v. Wolman, 2009 ONSC 69793 at para. 24.