Sitting in a temperature-controlled Toronto art warehouse, a wooden crate houses a white plaster figure of a headless, armless, naked man that is allegedly the work of French master sculptor Auguste Rodin.
Called Walking Man, the approximately one-metre-high plaster – a kind of mould figure said to have been used to cast Rodin's bronze statues – is marked with cracks and one of its legs is completely smashed. It has sat neglected for years.
The work is one of the last remnants of an audacious plan from more than a decade ago to loan dozens of Rodin pieces said to be worth $135-million to the MacLaren Art Centre in Barrie, Ont., a move that was supposed to turn the small gallery into an international art hot spot and create a touring Rodin exhibition. But it didn't work out that way.
The scheme, which did see some of the pieces shown at the Royal Ontario Museum in 2001, was predicated on a complex multimillion-dollar tax-avoidance ploy for the wealthy benefactors who were solicited to fund the exhibition. It all fell apart after a French criminal investigation raised doubts over the authenticity of the pieces. According to court documents, the works were allegedly originally supplied by a convicted fraudster prosecuted in France for art fraud involving Rodins.
Since the debacle, which nearly forced the MacLaren to shut down, most of the plasters and bronze statues were returned to their owners, except a handful. Among them is the irreparably damaged Walking Man, which remains in a storage facility paid for by MacLaren, even though the piece is co-owned by two Calgary lawyers, Dino DeLuca and Grant Vogeli.
Both are partners at one of the city's most prominent firms, Burnet Duckworth & Palmer LLP, and Mr. Vogeli, according to court documents, is an art collector with previous experience with what is known as an "art flip," in which artwork is bought cheaply and then donated at a higher value for tax purposes.
After the collapse of the plan, the pair allegedly failed to respond or refused to co-operate with the MacLaren's various attempts to have the plaster shipped back to them, according to court documents. But after learning it was damaged, they sued the art gallery in 2009, alleging that it was transported without sufficient padding and in a substandard crate. They demanded $500,000 in compensation.
They cite two art experts pegging its value, before it was shattered, at between $250,000 and $425,000, although according to court documents those experts did no independent investigation into the piece's authenticity, with one merely relying on photographs. The plaintiffs say they bought the piece in 1998 for $62,500.
The MacLaren alleges the plaster's authenticity has not been proven, meaning it could be a worthless fake. It acknowledges the artwork was damaged during shipping between storage facilities. But MacLaren says it should not be held responsible since it was left for years to care for a piece of art it did not own.
Late last year, an Ontario Superior Court judge ruled that the suit against the MacLaren gallery was filed more than two years after the plaintiffs learned of the damage, too long under Ontario's statute of limitations, and threw their case out. The judge demanded that Mr. DeLuca and Mr. Vogeli pay MacLaren more than $8,500 plus interest in storage costs.
But on July 8, the Ontario Court of Appeal overturned that ruling, reviving the lower-court battle over the shattered plaster. The judge on the case could still choose to throw it out on other grounds. But the ruling opens the door to a potential trial that could attempt to discover, once and for all, if the Rodin is real or a forgery.
Getting a final answer could be difficult, due to very nature of Rodin's work. Rodin, who died in 1917 and is best known for his iconic Thinker, made multiple copies of the same statue, sometimes in different sizes. Multiple so-called "foundry plasters," such as the one in question, have been used to make bronzes long after his death.
John Adair, a Toronto lawyer with Adair Barristers LLP acting for Mr. DeLuca and Mr. Vogeli, said neither he nor his clients would comment.
Arnold Schwisberg, the lawyer acting for the MacLaren's insurer, said in an interview he was confident the gallery would prevail: "The institution believes it has not erred. We've got solid arguments to the effect that they [the MacLaren] were saddled with this, they were not reckless, they were not deliberate. Damage happens. It is unfortunate. But they are not liable for it."
The fight over Walking Man follows years of other litigation over the MacLaren's Rodin fiasco. In 2007, other would-be donors that participated in the art-donation tax scheme -- including investment bankers Robert Foster and Anthony Lloyd, Rolling Stones tour manager Michael Cohl, pollster Martin Goldfarb, broadcasting billionaire Allan Slaight -- challenged an Ontario Superior Court ruling that allowed French investigators from the state-controlled Musée Rodin in Paris to inspect MacLaren Rodin plasters as part of a criminal investigation in 2004. The inspection allegedly damaged the plasters, and was also blamed for some damage to Walking Man. The Ontario Court of Appeal dismissed their claim in 2006.
Last year, the Federal Court of Appeal upheld a previous tax court ruling that the tax credits claimed under the scheme were invalid because participants stood to benefit, meaning the donations could not be considered tax deductible gifts. Since the MacLaren scheme, the Canada Revenue Agency has aggressively audited taxpayers who take part in a variety of tax schemes designed to inflate the size of a charitable donation, clawing back billions of dollars in reassessments.