TORONTO - A Toronto gallery must now pay tens of thousands of dollars to a Canadian musician who alleged he was sold a fake painting purported to be by the renowned Indigenous artist Norval Morrisseau.
Ontario's top court says the trial judge made several errors in dismissing the legal action by Kevin Hearn, a member of the Barenaked Ladies, against the Maslak-McLeod Gallery.
Hearn purchased the painting, titled "Spirit Energy of Mother Earth," in 2005 after receiving assurances that it was authentic and being promised a valid provenance statement attesting to that fact.
Court documents say Hearn launched his legal battle after an official at the Art Gallery of Ontario told him the painting was likely a fake, and the gallery's now-deceased owner refused to investigate the allegation or issue a refund.
At trial, an expert testified that while the painting drew on Morrisseau's "visual vocabulary" it did not fit in with his other works from that time and she believed it to be a forgery.
In a ruling released today, the court of appeal says the trial judge erred in rejecting the expert's testimony based on his own research, which was not entered as evidence.
It says the judge also misapprehending the evidence regarding the agreement between Hearn and the gallery, particularly in relation to the issuance of a valid provenance statement for the painting.
The appeal court says the gallery must pay Hearn $50,000 plus interest for breach of contract and breach of the Sale of Goods Act, as well as $10,000 in punitive damages. If Hearn receives the money, he must return the painting to the gallery, the ruling says.
