When is a painting of ‘national importance’? Court weighs in

The Federal Court of Appeal said a 127-year-old impressionist painting is of "outstanding significance”" and “national importance” and may not be exported from Canada.

When is a painting of ‘national importance’? Court weighs in
Julie Mouris says a Federal Court of Appeal decision shows that in situations with open-ended or undefined terms, the courts will afford considerable deference to an administrative tribunal’s interpretation.

The Federal Court of Appeal said a 127-year-old impressionist painting is of "outstanding significance”" and “national importance” and may not be exported from Canada.

The April 16 decision, Canada (Attorney General) v. Heffel Gallery Limited, 2019 FCA 82, overturns a lower court’s decision and defers to the Canadian Cultural Property Export Review Board. Art galleries from across the country, such as the Royal Ontario Museum, the Art Gallery of Ontario, the Vancouver Art Gallery, the Winnipeg Art Gallery, the Thomas Fisher Rare Book Library at the University of Toronto, the Remai Modern and the Montreal Museum of Fine Arts intervened.

Ottawa-based Conway Baxter Wilson LLP associate Julie Mouris, who represented Heffel noted that issues of national importance and significance also affect domestic galleries who hope to receive donations and tax incentives for art and other artifacts. Bill C-97 in the House of Commons, tabled this spring, proposed removing the requirement that property be of “national importance” to qualify for enhanced tax incentives on donations of cultural property.

Mouris says the decision shows that in situations with open-ended or undefined terms, the courts will afford considerable deference to an administrative tribunal’s interpretation of the term.

“So, for us, the takeaway is that the deferential standard is very high and very difficult to overcome because the board is seen to have some considerable expertise over the interpretation of the provisions,” Mouris says.

The case centres on oil painting called Iris bleus, painted in 1892 by French artist Gustave Caillebotte which the decision likened to Vincent Van Gogh’s Iris.

The painting was sold to an English gallery at auction for $678,500, after 60 years in the private collection of a Canadian collector. Heffel Fine Art Auction House had to apply for an export permit from the Department of Canadian Heritage to send the painting to England.

After an officer refused to allow the painting’s permit, a seven-member board reviewed the application and also unanimously refused. The board said that the painting was on the Canadian Cultural Property Export Control List, and that it was of such outstanding significance and national importance that “its export would significantly diminish the national heritage,” said the decision, written by Justice Ronald Boivin with Justices Mary Gleason and Marianne Rivoalen concurring.

The framework for determining whether something has “outstanding significance” includes “close association with Canadian history or national life, its aesthetic qualities, or its value in the study of the arts or sciences” as well as national importance. Objects must be more than 50 years old, the creator must be deceased and imported objects must have been in Canada for at least 35 years to be considered.

The board noted that only one other work by Caillebotte was in any Canadian collection, and that the Metropolitan Museum of Art in New York also only had one Caillebotte piece acquired in 2014. It also said Caillebotte was a leading artist of French Impressionism, which is important to the overall understanding of art history. The painting was originally sold by an important art dealer and it is the only representation of Caillebotte’s symbolic flower series.

“Observing that the opportunities to view and study the work of Gustave Caillebotte in Canada remain very limited, the Board was of the view that the Iris bleus further met the criteria of ‘outstanding significance’ for its value in the study of the arts,” wrote Boivin.

The auction house applied for judicial review, where the board’s decision was overturned, in part because the board’s interpretation of “national importance” was “overly broad” and “unreasonable,” said the appeal court’s decision.

But the appeal court sided with the board, criticizing the Federal Court’s finding that the use of the words “national” and “heritage” meant that the work must have “significance to be particular to Canada and Canadians.”

“I am of the view that the Federal Court erred in failing to properly apply the standard of reasonableness. The Board’s interpretation of its home statute was entitled to deference,” Boivin wrote. “Federal Court relied on dictionary definitions to further bolster its textual interpretation…. This approach led the Federal Court to focus on the ordinary meaning of the words as a complete answer which led it to overlook the ‘authentic’ meaning of the provision.”

The “key words” of the law, “national importance” and “national heritage,” are not defined by the Cultural Property Export and Import Act, indicating that Parliament intended to give the board “broad discretion” to asses national importance, wrote Boivin. Boivin also drew a distinction between “outstanding significance” and “national importance.”

“For example, a painting may meet the ‘outstanding significance’ requirement …. because of its beauty (aesthetic qualities) but not the ‘national importance’ requirement where, for instance, there are many similar other pieces of art in Canada by the same artist that are in better condition,” the decision said.

Jason Beitchman, a partner at Rayman Beitchman LLP in Toronto, says the decision is particularly interesting because it raises issues around terms like “outstanding significance,” which are unusual in statutes and powerful legal buzzwords.

“This case starts with a private collector,” says Beitchman. “Is it of national significance if it was sitting in someone’s living room for 60 years? I find that unusual.”

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