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Contested export of a Caillebotte painting raises questions about Canadian cultural law

A Canadian court recently overturned a ruling on the "national importance" of the French Impressionists's work, sold at Heffel Auction House in 2016

Caillebotte's Iris Bleues sold at Heffel auction house to a London dealer in 2016 but was denied an export licence Courtesy of Heffel Fine Art Auction House

Canada’s Federal Court of Appeal recently overturned a 2018 ruling to quash the Canadian Cultural Property Export Review Board's assessment of a Gustave Caillebotte painting as a work of “national importance”. The drawn-out case, originally brought by Heffel Fine Art Auction House in 2017 and involving the barred export of the work from Canada, has sparked a debate about what constitutes Canadian culture. While the ruling is a boon for Canadian institutions, some fear that it could stifle the commercial art market.

The Canadian Cultural Property Export Review Board first ruled in July 2017 that the French Impressionist painter’s Iris Bleues (1892), purchased by London’s Richard Green Gallery for $678,500 at Heffel’s Toronto auction house in November 2016, was both a work of “outstanding significance” and “national importance”.

The board was created in the 1970s to keep important art or historical artefacts in the country and is modelled largely on its UK equivalent with borrowings from French cultural property export law. Export permits are required if the item is more than 50 years old, made by someone no longer living and if it meets other criteria, such as monetary value, that depend on the kind of object it is. The item must be judged to be of both “outstanding significance” and of “national importance” in order to keep it in the country.

Only the second known Caillebotte to be in a Canadian collection, the board imposed a six-month delay on the export of the Iris Bleues to provide leeway for any interested Canadian cultural institutions that might want to acquire the painting.

Heffel immediately applied to the federal court for a judicial review of the board’s decision after its export licence was denied. The auction house did not challenge the board’s claim of "outstanding significance" but argued that the work was not of national importance—a criteria that is unique to the Canadian cultural export system—contending it did not have a direct connection to Canadian culture and did not influence any Canadian artists or Canadian discourse. Furthermore, the work had been in a private collection since the 1960s and publicly displayed only once.

The auction house was initially successful. The federal court agreed that the board’s interpretation of “national importance” was too broad. The win, however, was “very unusual, not just in Canada but also in the UK, as there has never been a successful challenge through a judicial review”, says Alex Herman, assistant director of the Institute of Art and Law and a member of the Quebec Bar. He cites the unsuccessful bid of the J. Paul Getty Museum in Los Angeles to acquire Antonio Canova’s Three Graces through legal action in the 1990s as an example of such difficulties.

The heart of the issue is whether Canadian-held, internationally created artwork could be of such importance that its export to an international gallery or collector would be prohibited under the Cultural Property Export and Import Act.  The act has typically incentivised Canadian taxpayers to dispose of cultural property to institutional and public authorities under the same “outstanding significance” and “national importance” framework.

Eight major Canadian museums—including the Art Gallery of Ontario and the Vancouver Art Gallery, as well as the Thomas Fisher Rare Book Library at the University of Toronto Librairies —joined in the appeal of the initial Federal Court decision in favour of Heffel. That Federal Court ruling was ultimately overturned in April by the Federal Court of Appeal. Meanwhile, in the March 2019 federal budget, the government eliminated the “national importance” criteria for tax certification (although  it still stands for export licences). The budget passed last week and Heffel did not request leave to appeal before the Supreme Court.

Francois Le Moine, the lawyer representing the museums, argues: “If the Federal Court’s ruling had been maintained, it would have been very difficult for Canadian museums to obtain donations of objects from antiquity, the early modern period, or non-Western cultures. This would, in turn, have had a direct detrimental effect on the scope of what museums could showcase to the public.”

Yet Herman, who fears that the recent ruling in favour of the board will dampen the market for international art in Canada because of heavy handed bureaucracy, believes it is time to reassess the whole issue of “national importance”. He maintains that tougher criteria to prove a direct connection to Canadian culture would actually benefit collectors, the public and the art community.

Ultimately, the question at stake is a definitional one, namely, what constitutes Canadian culture, according to Le Moine: “Should our public policy only support what is directly linked to Canada, or should our public cultural policy also encourage contact between the Canadian public and international culture?”