By description? Canadian judgment complicates art contracts

Posted on: December 2, 2019 by

Legal cases involving questions of authenticity, attribution and provenance are generally not easily determined. However, in a recent Canadian case, the Court of Appeal for Ontario applied contract law to tackle (or avoid) the issue.

A courtroom in Osgoode Hall, the seat of the Court of Appeal for Ontario.

The case involved a painting, entitled Spirit Energy of Mother Earth, purportedly by the renowned First Nations artist, Norval Morrisseau. Joseph McLeod sold the work to Kevin Hearn at his gallery, the Maslak-McLeod Gallery, in 2005. The painting was supplied with a provenance statement, attesting to its ownership history. Subsequently, whilst on display at the Art Gallery of Ontario in 2010, doubts over the painting’s authenticity were raised and it was removed from display. At this stage, Hearn reached out to McLeod to seek clarification of the work’s authenticity and, as a result, he was provided with a second and different provenance statement.

It was central to the case that there are a significant number of forged Morrisseau paintings in existence. Crucially, both parties were aware of this and, according to the appeal court, this knowledge was fundamental in determining the correct interpretation of their contract. Hearn was said to have voiced his concerns over the existence of forgeries to McLeod but was reassured that the Maslak-McLeod Gallery was “the safest and best place to buy a Norval Morrisseau painting” (paragraph 37). This is not the first time that a dispute over a Morrisseau work has come to court, nor is it the first time this gallery has been involved in such a case. There is even a specific website,Norval Morrisseau Legal, set up to track these disputes and cases. Furthermore, as noted by the trial judge, Morrisseau himself made accusations against the Maslak-McLeod Gallery for selling forged works before he died, although McLeod disputed this and nothing tangible ever came of the allegations (paragraphs 81-89).

Hearn brought his case against McLeod and the McLeod-Maslak Gallery, although prior to the trial’s commencement, McLeod deceased. The action alleged that McLeod had sold Hearn a fake painting, accompanied by a false provenance statement. Therefore, Hearn claimed the return of the purchase price, some $20,000, as well as a sum representing loss of investment ($25,000), punitive damages ($50,000) and costs.

The trial judge gave a lengthy judgment, considering the evidence provided by the parties in depth. Predominantly, he focused his attention on the evidence given on behalf of Hearn by Dr Carmen Robertson who utilised a technique known as Morellian analysis, which is essentially another term for connoisseurship or ‘eye’. She concluded that Spirit Energy of Mother Earth was not an original Morrisseau. The trial judge took issue with her methodology of assessing the painting, concluding that it was too subjective to prove, on the balance of probabilities that the work was not by Morrisseau.

At appeal, the judgment was comparably brief. Firstly, it was held that the trial judge erred by rejecting the evidence based on his own personal research. It was a breach of the rules of natural justice to rely on external evidence not before the court, his conclusions lacked sufficient reasoning and, furthermore, the judge stepped outside of the realm of impartiality (paragraphs 16-34). Secondly, the appeal court found that the contract between Hearn and McLeod was not simply for an authentic Morrisseau. The contract was for an authentic Morrisseau with a valid provenance statement. As it transpired, both of the provenance statements supplied by McLeod contained information which was either false or impossible to substantiate. The appeal court concluded that the contract should be analysed as a ‘sale by description’ and, since the goods did not comply with the description, Hearn was entitled to damages of $50,000 (paragraphs 35-47). Sufficient evidence for civil fraud on the part of McLeod was also established, which resulted in an additional award of $10,000 in punitive damages (paragraphs 48-51).

The court avoided making a judgment on authenticity by finding a breach of contract on other grounds. Unfortunately, some of the court’s reasoning is a little opaque. What, for instance, was the substance of the contract’s description on which the award of damages was based? The provision of a valid provenance statement? What exactly makes a provenance statement valid?

Furthermore, there is inconsistency between this Canadian judgment and how English courts have approached this matter. Generally, courts in England have rejected the application of sale by description to art authenticity cases on the basis that, since almost any attribution is open to dispute, such assertions are insufficiently certain to be contractually binding. For example, see these two cases: Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd and Drake v Thos Agnew & Sons Ltd.

Ultimately, the present case demonstrates that the proper construction of a contract for the sale of art is still a complicated undertaking for a court. Unfortunately, the Court of Appeal for Ontario may have left us with more questions than answers.

A more in-depth discussion of this case will be presented in a case note written by Charlotte Dunn to be published in the forthcoming December 2019 issue of Art, Antiquity & Law.

Image credit: Osgoode Hall, Courtroom via Wikimedia Commons, CC BY-SA 3.0 @I, Padraic Ryan