The Ontario case of Mcleod (Maslak Mcleod Gallery) v. Sinclair, 2008 CanLII 67901 (ON S.C.), deals with the art of the late great prolific First Nation artist, Norval Morrisseau, and alleges “forgeries” or “counterfeits” of his work. The British Columbia proceeding, Boundary Museum Society v. City of Grand Forks, 2008 BCSC 898 (CanLII), involves a plaintiff and a defendant with the same basic interests, arguing over the protection and housing of between 12,000 and 14,000 artifacts from the communities of Grand Forks and the Kootenay Boundary Regional District.
In the Morrisseau action, four galleries and one distributor, all engaged in identifying, purchasing, holding and selling the works of Norval Morrisseau, are suing Ritchie (“Stardreamer”) Sinclair, alleging that through his website (www.Morrisseau.com) Sinclair is defaming the plaintiffs by falsely and without justification stating that works of art attributed to Morrisseau, owned or held by them, are not genuine. Sinclair responds that his motivation is to perform a public service and to assist in protecting Morrisseau’s legacy.
At an early stage in the court case the plaintiffs brought a motion requesting a temporary injunction to have Sinclair’s website shut down pending trial. The main proceeding, framed as a defamation action, seeks a permanent injunction, monetary damages and other relief.
In his decision, Justice Lederer acknowledges that it’s generally known that there is a concern that there are a number of paintings on the market which are identified as Morrisseau’s work, when they are not.
The motion was heard December 8, 2008, prior to cross-examinations on the affidavits filed by the parties. So the veracity of the allegations had not been tested, and in fact a lengthy affidavit of Sinclair, sworn January 5, 2009, had not yet been filed with the court. In that affidavit Sinclair explains in detail why he believes that many of the works offered for sale by the plaintiffs are fakes, and enumerates in detail the rationale for his belief that galleries, auction houses and ebay are offering paintings for sale that are not Morrisseau’s. He goes to great lengths to explain his expertise in terms of the Morrisseau art, based on his investigation, and importantly his lengthy master-protégé relationship with Morrisseau.
Each of the plaintiffs, the judge stated, asserts that the claims made attacking the pictures are in error and the paintings are genuine. Yet Sinclair’s website identifies works which have been offered for sale by one or more of the plaintiffs, alleged to be “fakes,” “counterfeits,” “imitations,” “stolen,” “inauthentic,” and so on. He names names, so to speak, of particular plaintiffs and specific works of art.
The judge noted that Sinclair has made it his personal concern to identify, uncover, make known and even publicize works said to be those of Morrisseau which he believes are false. The contents of the website alone clearly support the judge’s statement.
At issue is the right of freedom of expression, and the appropriateness of a court to stifle it before trial and before the allegations have been tested through cross-examination.
The judge found that: on their face, the comments and observations of Sinclair are defamatory; Sinclair had not yet had an opportunity to fully respond to the allegations that his comments are erroneous; Sinclair’s right to freedom of expression must be borne in mind; and both sides have a right to protection under the law.
Justice Lederer struck a balance, acknowledging that the website is in the public domain, and that while the proceedings are public, court records are not easily available. He ordered that the website can remain up pending further court order, provided that Sinclair place a notice on each page of the website which refers to the lack of authenticity of Morrisseau paintings, stating the court file number and the following:
“The opinions expressed on this website and on this page are those of Ritchie ‘Stardreamer’ Sinclair and of no other person. These opinions are alleged to be defamatory and are the subject of an action in the Superior Court of Ontario.”
The motion for temporary relief was adjourned to February 18, 2009, presumably so that further affidavits and transcripts of cross-examinations would be filed with the court. Counsel for the defendant has advised me that there have not yet been cross-examinations; that the motion was subsequently adjourned to March 18, 2009; and then once again without a fixed date to re-appear in court.
The plaintiffs run businesses, at least to some extent for profit, and believe that their reputations are wrongfully being besmirched. However it is reasonable to assume that part of their motivation for commencing proceedings was to maintain the integrity of the art world at large and serve the interests of collectors of Canadiana. The defendant, on the other hand, appears to be inspired by pure altruism, and concern that the public is being misled, without profit motive. It therefore seems that at least one of the parties is being driven solely by concern for the public, and the other in an indirect fashion.
The B.C. case is much more striking in terms of both parties having a similar, if not identical public interest. Boundary Museum Society (the “Society”) was formed in 1980 to educate the people of Grand Forks and Kootenay on historical artifacts, their cultural significance, and the effect of the artifacts on the communities, through providing a museum and archives. Its bylaws provide that the Society’s members shall include The City of Grand Forks (the defendant “City”), its Mayor, its Chief Administrative Officer, a city councilor and electoral area directors for Kootenay. Despite the striking connection between the Society and Grand Forks, the Society sued the City regarding matters relating to the artifacts.
The Society operated its museum in premises owned by the City, free of rent and utilities. The premises eventually became dilapidated, and water leakage and electrical problems put the collection at risk. In 2005 the City voted to demolish the building and the following year the Society proposed that the museum be moved to the former courthouse building once renovations had been completed. The City then pursued a redevelopment plan for the town square, including a park and premises in the courthouse for the museum, and an art gallery. In 2007 the Society refused or neglected to sign a form of lease. A number of months later the City advised the Society of the town square redevelopment plans, which included demolition of the old building with anticipation of a timely and orderly move to the former courthouse. The City alleged that the Society was not cooperating. Shortly thereafter the City locked the doors to the museum.
Two weeks later the Society advised the City that the collection could not be moved until Fall, 2008. But because of the City’s contractual obligations, it became necessary to move the collection before the end of February so that demolition could proceed in an orderly fashion pursuant to the City’s plan. The City engaged two curators to supervise and record the collection, and a mover to package, label and remove it to a secure temporary location.
The Society started a court action asking for a declaration that it owns the entire collection, and not just the artifacts which had been assigned to it by donors. It brought a motion to restrain the City from selling, disposing of or dealing with the collection. Mr. Justice Brooke dismissed the motion, stating that the Society had not made out a case for irreparable harm. He found no evidence that the City had any intention of inappropriately dealing with the collection. In fact the City invited Society representatives to be present when the artifacts were to be moved.
The judge’s commentary was more important than his decision, since it brings us to the point of this article:
“I only wish to add that it is regrettable when two parties with such a large and important community of interest are unable to agree to a reasonable resolution of what seems to me to be a very narrow issue, which, given the public’s beneficial interest, may be no issue at all. The collection is being moved from a high-risk environment to a secure one, an environment which everyone agrees is a good idea. At the end of the day, does it really matter who “owns” the collection as between the City and the Society?”
In the B.C. case, the judge’s concluding remarks will probably lead to a resolution of the entire lawsuit. The public in due course will once again have an opportunity to view and learn from a segment of Canadian pre-History. In the Morrisseau case, we can only hope that a much-needed court-ordered mediation will devise a mechanism whereby all can agree to a means by which the fakes can be differentiated from the authentic works, so as to remove a dark cloud which has been haunting the mastery of Norval Morrisseau. Only then will the public interest truly be served.
Alvin Starkman is a member of The Law Society of Upper Canada. However, this article is not intended to be and should not be relied upon as constituting legal advice or opinion. Alvin and Arlene Starkman, former Toronto residents and collectors of Canadiana, moved to Mexico in 2004. They operate Casa Machaya Oaxaca Bed & Breakfast.