U.K. Foundation attempting to overturn ruling that allowed N.B. gallery to retain $100M worth of art

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FREDERICTON - A panel of three preeminent judges will hear the appeal of the Beaverbrook Art Gallery's arbitration victory in Fredericton beginning Sept. 22.

Retired justices Edward Bayda, Coulter A. Osbourne and Thomas Braidwood have set aside two weeks to hear arguments in the case at a conference centre on the campus at St. Thomas University.

Lawyers for the Beaverbrook U.K. Foundation are attempting to overturn a ruling made by retired Supreme Court Justice Peter Cory that allowed New Brunswick's provincial art gallery to retain $100 million worth of works whose ownership was in dispute between them.

In an appeal filed in March, the foundation's legal team complained that Cory showed bias from the beginning of the proceedings and made inflammatory comments that foretold his eventual decision.

Cory awarded the gallery 85 of the 133 pieces at issue, including the institution's most prized paintings -- William Turner's Fountain of Indolence and Lucian Freud's Hotel Bedroom. He also ordered the foundation, which is run by one of Lord Beaverbrook's heirs, to pay $4.8 million in legal costs, the largest award of its kind in Canadian history.

"Justice Cory is as sharp as they come, and we think he made a reasoned decision on a principled basis," said David Young, an attorney with McInnes Cooper in Fredericton, which is representing the gallery with help from a Toronto firm. "We are reasonably optimistic the panel will uphold the decision."

The foundation's legal team will have to convince the panel that Cory made a grave factual error when he reached his finding. The proceedings took place over several months at the end of 2006, with the decision issued by Cory on March 20, 2007.

The appeals panel will be chaired by Bayda, the former Chief Justice of Saskatchewan. Osbourne is the former Associate Chief Justice of Ontario and also served as the province's Integrity Commissioner, while Braidwood is a former Supreme Court judge in British Columbia. Just last month, he was appointed to lead an inquiry into the use of Tasers in British Columbia in the wake of the death of a Polish man at the hands of police officers at the airport in Vancouver.

The gallery, which was established in 1959 by New Brunswick-raised Lord Beaverbrook, is expected to make its response to the foundation's written submission next month.

"We are taking the same position we took at the time the appeal was filed,'' said Bernard Riordon, the director and chief executive officer of the Beaverbrook Art Gallery. "We believe that Mr. Cory's decision was fair and just, we want to move on, and we believe we will prevail."