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By Debora Steel
Windspeaker.com Reporter
TORONTO
The much anticipated lawsuit of Hearn v. Joseph Bertram McLeod and Maslak-McLeod Gallery Inc. returns to court May 8 for pretrial. Plaintiff Kevin Hearn, of Barenaked Ladies fame, is expected to be in attendance, said his lawyer Jonathan Sommer.
The pretrial will give the judge the opportunity to see whether there’s a possibility of resolving the matter, said Sommer. Hearn alleges that a painting—Spirit Energy of Mother Earth— purchased from the gallery in 2005 is not an authentic Norval Morrisseau.
It’s important to note that Hearn’s allegations have not been proven in court.
If the matter cannot be resolved between the parties in pretrial, the day will allow for some housekeeping to be done, said Sommer, including any admissions that one or the other parties might be willing to make, or issues that could be dropped from the lawsuit, or documents that must be exchanged before going on to trial Oct 2.
The trial is scheduled for 12 days, and Sommer is expected to call as many as 20 witnesses, including Dr. Carmen Robertson of the University of Regina and board member of the Norval Morrisseau Heritage Society as an expert witness.
“She’s arguably the leading expert in the world on Norval Morrisseau and his work,” asserts Sommer, “so she will be testifying about her opinion about the authenticity of the work in question.”
From a legal perspective, the lawsuit is specifically between the parties about a single painting —in personam—and the issues around the transaction, Sommer explained, but the determination of the court may reverberate far and wide throughout the art world, the world of academia, and public perception.
“What would be the effect of a finding that the painting is a fake in that world? Well, I think in that world it probably would be far-reaching, because everyone knows that this is not going to be a 20-minute trial, and this is something that we’ve prepared for years and years. And we’ve done an enormous amount of research and there are a lot of witnesses whose testimony is going to be heard if we have our way,” said Sommer.
He promises “a very robust exploration of this question. And that means, if the art world is paying attention, and I know they are, then it can have a very big effect on the way that academia and the art market deals with this type of painting.”
“This type of painting” is one that is alleged to be from a series of fake Morrisseaus produced by an art fraud ring that is alleged to have operated in the Thunder Bay area, funneling works in great numbers to dealers and buyers though an auction house.
Thunder Bay police did undertake an investigation in 2000, but did not bring any charges.
The judge in the Hearn case will be tasked with determining if such an art fraud ring existed.
Hearn is alleging that the Spirit Energy of Mother Earth painting “simply could not have been made by Norval Morrisseau, or in the time frame that is alleged by the defendants,” said Sommer.
Hearn is suing for $95,000, which includes $20,000, which represents the dollar amount paid for the painting, $25,000, which represents Hearn’s loss on investment, and $50,000 in punitive damages. Hearn alleges (again yet to be proven in a court) that that there was a fraudulent representation by the defendants.
In order to prove fraudulent representation, it would have to be proved that the defendants knew the painting was fake when it was sold to Mr. Hearn, or that the defendant had a reckless disregard for the truth with respect to whether or not the painting was fake, said Sommer.
In his statement of defence, the defendant denies the allegations, and claims Spirit Energy of Mother Earth is a genuine Norval Morrisseau. Representing Mr. McLeod is lawyer Brian Shiller.
Windspeaker.com did reach out to Mr. Shiller late Friday afternoon May 5, but have yet to hear back from his office, though we look forward to be able to bring his perspective on the case to our readers when we can.
However, in a CBC interview published in February 2014, Shiller “called the accusations against his client false and said they were not only damaging to McLeod, but to the art community as a whole.”
"The allegation that Mr. McLeod's involved in a fraud ring is simply preposterous," said Shiller in the same article. "They will never produce evidence that Mr. McLeod was involved in a fraud ring, particularly where they name the people who were involved in the fraud and Mr. McLeod doesn't know any of them, has never spoken to any of them and has had no business relationship with any of them at all."
The authenticity issue that swirls around Norval Morrisseau and some paintings attributed to him has been battled over many years in courtrooms. The Hearn case is not the first time Sommer and Shiller will square off over the authenticity of a Morrisseau in court.
“I was the lawyer on an another case called the Hatfield case, which was a Small Claims case that I handled fairly soon before the trial occurred,” Sommer said. His client was the purchaser of a painting, and his client’s allegation against the vendor was that the vendor had sold her a fake painting.
“The court disagreed with that, and the result was that the court stated, in its view, on the balance of probabilities, that that painting was authentic,” said Sommer.
The Hearn case is similar to the complaint in the Hatfield case, in that both paintings have black dry brush writing on the back, explained Sommer.
The black dry brush paint signature is much debated among those who have interest in the case.
The black dry brush signature will not be central to the Hearn case, Sommer said, but will be an element of the case.
“There’s a history with courts, often focusing, in my view, too much, too myopically, on signatures when it comes to art. The art world tends to discount signatures quite a bit and when I talk about the art world, I mean scholars would rather hang their hat typically on something other than a signature, such as an analysis of the image itself, the provenance, the materials, from a forensic perspective,” said Sommer.
Sommer also represented Canadian tenor John McDermott, who brought suit in 2013 that alleged he was sold three paintings that had been attributed to Morrisseau, and which he came to believe were fakes or imitations. That suit, however, has since been abandoned.
The Hearn case may also go to some very dark places, including an examination of the dealings of a man who is alleged to have been the head of the art fraud ring, and who is currently serving time in prison for numerous sexual assaults against young men.
“The sexual assault stuff is obviously indirect; it’s something that’s related to this. It’s obviously not the focus of what we are doing, but certainly it’s a horrifying element that’s related to this whole story,” said Sommer.
And there will also be an examination of the life, and life-choices, of Norval Morrisseau himself.
“One of the goals of the trial that we are going to go into is to talk about Norval a great deal,” said Sommer. Numerous witnesses that knew him will talk about what he was like, he said.
“And we want to reconstruct him in all the complexities.”
Sommer described Norval Morrisseau as “a genius when it came to his artistic, creative skills… a powerful guy in a lot of ways. He was a force to be reckoned with and he did some things that were incredible. And he did some things that were, a lot of people might have found offensive or wrong-headed, just like any other human does.”
Sommer said some have attempted “to reduce (Norval) to nothing. To discredit him.” Paint him as “the stupid drunk Indian.
“And, yes, he had problems with substances, especially alcohol, but he was not stupid, that’s for sure,” Sommer said.
When asked if this case could have the effect of destroying much of Norval Morrisseau’s legacy, Sommer replied, if the painting is found to be a fake, “rather the opposite. It would be the preservation of his actual legacy. Because his works, his authentic works, are things to behold. I mean, its some incredible work with incredible energy that comes out of it and you can see it when you look at a lot of his work.”
Sommer said he’s been working on this issue for the past eight years, and the vast majority of the work has been pro bono. “Probably, 75 per cent or more over the work that I’ve done. This is all pro bono.”
Asked why he has been so committed to it, Sommer said “I’m not sure that we always know why a particular issue becomes important to us.”
He comes from a family of artists, he said, and was trained as a filmmaker and photographer before going to law school. “And I care about art.”
His father was a writer and environmentalist, and worked with the Abenaki Tribe in Quebec to help them preserve some of their oral history. Sommer’s father related to him that one of the proudest moments of his life was when he was invited by the Abanaki to attend and be part of a sweatlodge ceremony with them.
“And that kind of thing really stuck with me.”
Sommer said he finds offensive the combination of deception and theft of identity, cultural identity, that will be heard as related to the allegations of the case.
As for his client, Kevin Hearn, Sommer said “the case doesn’t make any economic sense… lawsuits are expensive, even if your lawyer is doing a lot of work free. Kevin’s still paying a lot of money to make this thing happen.” What he does really want, said Sommer, is to “set the record straight on this.”
“It’s certainly something that should be of national importance and interest,” said Sommer.