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Heffel Gallery decision is good news for museums building public art collections

Canadian lovers of French impressionism can rest easy with the Federal Court of Appeal’s recent ruling in Canada (Attorney General) v. Heffel Gallery Limited, 2019 FCA 82. A rare Gustave Caillebotte work, Iris bleus, jardin du Petit Gennevilliers (1892), is outstandingly significant, nationally important and, therefore, will remain in Canada.

This ruling is a first in the art world and is good news for Canadian art museums looking to build strong public art collections that feature international works.

The case made its way to court after Iris bleus sold to an international commercial gallery at Toronto’s Heffel Gallery auction in November 2016. Heffel needed an export permit to send the painting to its new owner. The Canadian Cultural Property Export Review Board refused to grant Heffel an export permit and Heffel applied to the Federal Court for a judicial review of the board’s decision.

The crux of the issue was whether Canadian-held, internationally created artwork could be of such national importance that its sale to an international gallery or collector would be prohibited under the Cultural Property Export and Import Act.

Under the act, owners and/or collectors are not permitted to sell pieces subject to the act’s control list to international buyers if they are both of “outstanding significance” and “national importance.” In Heffel’s case, everyone agreed that Iris Bleus was a painting of outstanding significance based on its esthetic qualities and relative rarity in the art world. But Heffel challenged the board’s decision that it was nationally important. Heffel’s position on the judicial review application was that the board’s interpretation of national importance was too broad and unreasonable because it would include works not necessarily created in Canada or by Canadian artists.

Heffel was initially successful. The Federal Court agreed that the board’s interpretation of national importance, which concluded that the loss of Iris bleus as a “highly desirable example of Impressionist landscape” would “significantly diminish [Canada’s] national heritage,” was too broad. The Federal Court quashed the board’s decision and sent it back to a differently constituted panel of the board to be decided again. The Federal Court of Appeal disagreed.

The Federal Court of Appeal in Heffel held that nationally important does not always mean Canadian-made. Although Canada won its case on administrative law principles, Justice Richard Boivin endorsed the board’s interpretation of national importance, which includes internationally created artwork that “reflects Canada’s cultural diversity” or that “enrich[es] Canadians’ understanding of different cultures, civilizations, time periods, and their own place in history and the world.”

The Federal Court of Appeal’s interpretation of national importance expands the makeup of the Canadian art world beyond the artist equivalent of CanCon and encourages public collectors to expand their view of this country’s culture.

Heffel’s loss in this case may ultimately be a win for Canada’s museums and galleries. When the board refuses to grant an export permit, it can impose a six-month delay period during which Canadian museums and galleries can bid on the item or ask the board to determine a fair price for purchase. If the owner refuses sale to a Canadian bidder, they must wait for two years until attempting to export the item again.

With the new interpretation of “national importance,” Canadian galleries may have the opportunity to retain works of art or culture that reach a broader and more diverse audience.

The Cultural Property Export and Import Act also works hand in hand with provisions of Canada’s Income Tax Act, incentivizing taxpayers to dispose of cultural property to institutional and public authorities under the same “outstanding significance” and “national importance” framework.

Now, with the board’s interpretation of national importance upheld by the Federal Court of Appeal, public art institutions may look to offer tax credits for internationally created works of art and curate exhibits that reflect Canada’s diverse cultural makeup.

With notes from Sarah Spitz

  • Court Appeal's Decision with Heffel Gallery is bad news for museums building public art collections

    Alan Klinkhoff
    The Federal Court of Appeal's decision in the Heffel case is an affront to property rights of Canadians and in the long-term of detriment to Canadian museums looking to build strong public art collections that feature international works. Your legal community will recognize that Canadian citizens are to be discouraged going forward by importing into Canada international works of art of even modest significance. Should they choose however to do so, legal counsel need advise them to make certain to export the works prior to 35 years residency in Canada in order to avoid government constraints in their exports. Respectfully, Mr. Beitchman, ''Iris Bleu, Jardin du Petit Gennevilliers'' is neither outstanding nor significant in the oeuvre of the artist Gustave Caillebotte. A work by Gustave Caillebotte isn't particularly rare either. As I write this e-mail in the morning of May 14, I note that there is an excellent work available tonight in an auction in NYC. It is genuinely a work of significance in his oeuvre. I would speculate it will cost approximately 12,000,000 $. There's another one available tomorrow. It's an ''okay'' picture by him, nothing to write home about. It will probably cost 1,000,000$ or so. There was one sold in February, outstanding and significant that cost close to 30,000,000$. I could go on. The Caillebotte, the root of the legal action, brought hardly 600,000$ at a public auction, one well publicized internationally and was purchased by a reseller in the UK because he could make a profit. The modest price he paid and his intent are adequate pronouncements as to what Canadians and art collectors globally thought of the quality and significance of this particular Caillebotte to his oeuvre. Attending the auction myself, I sensed that the UK purchaser was the one and only bid. Is the painting significant in the oeuvre of Caillebotte? Absolutely not. Outstanding? Ditto. The market certainly made clear its judgment on those questions. That a work of art can be considered of outstanding significance without being outstanding, significant, or even important would make for an interesting debate among your colleagues. Countless Canadians have become formidably generous in donating fine art to Canadian museums and do so without the arm twisting of tribunals. If art collectors are in any way discouraged from importing fine art to Canada, Canadians will not benefit of the loan of these paintings to Canadian museums for exhibitions for a larger Canadian public to enjoy. Although there is no guarantee that the Canadian owners of fine art will gift their works to Canadian museums, there is an absolute guarantee that if the works of art are not here in Canada in the first place, they will not be donated. Finally, whereas we are the first to be supportive of museums being permitted to accept donations of fine art by other than Canadian artists, the solution comes in a rewrite of the Act to permit them to do so. This particular case, replete with curatorial verbiage that essentially could allow institutions to block export and attempt to expropriate almost any even decent work of art after it has been in Canada 35 years, creates a potentially hostile atmosphere for today's collectors of fine art executed outside of Canada. This is bad news for museums building public art collections.
  • Art export

    Stephen Scott
    It might be one thing if a potential Canadian buyer were allowed to match a price available to the seller from a foreign purchaser, and on that basis, to preempt the export. But this legislation allows the Canadian Cultural Property Export Review Board to squeeze the owner on price and invites would-be Canadian purchasers to underbid foreign purchasers. In other words, the Canadian owner is required to subsidize, personally, the retention of art in Canada. The issue boils down to what is just compensation. It is ridiculous to expect the Board to establish a so-called "fair price" above what Canadian buyers are willing and able to pay. The owner is denied international free-market prices. The lesson for Canadian art-owners: Never bring potentially-important pieces of art into Canada.
  • The Federal Court of Appeal's decision re art export is to the long term detriment of art museums.

    Alan Klinkhoff
    Regarding Mr Scott's comment, it is our opinion that Canadians and in the long run Canadian museums are better served to purchase in the market place. If the AGO wants to buy a Gustave Caillebotte, allot the funds and go buy one in the market. Let's be candid, the one they bought is not significant, it's not important and it certainly is not outstanding. Its misfortune is that it was in Canada for more than 35 years and subject to export controls. The criteria used to stop the export of this painting sounds the alarm you address. ( It has the same name as a painting by Van Gogh that is in the National Gallery of Canada. This elevated the painting to being of National Importance? And its "aesthetic qualities". Sure, it's a decent picture. But it is not an important one by the artist. ) And your qualification of "potentially" in importance is particularly meaningful. A work of art that is not of great importance in the body of work of an artist can be deemed of National Importance and halted from export. It is then placed in to what we have called the "curators' discount shopping basket" where they can apply for funding beyond their acquisition budgets to stop the export from Canada of the art work. We agree 100% with your caution that Canadian art owners should not bring in to Canada even "potentially" important works of art into Canada. The present interpretation of the Act is in our opinion to the long term detriment of museums building public art collections.
  • Art export

    Stephen Scott
    It might be one thing if a potential Canadian buyer were allowed to match a price available to the seller from a foreign purchaser, and on that basis, to preempt the export. But this legislation allows the Canadian Cultural Property Export Review Board to squeeze the owner on price and invites would-be Canadian purchasers to underbid foreign purchasers. In other words, the Canadian owner is required to subsidize, personally, the retention of art in Canada. The issue boils down to what is just compensation. It is ridiculous to expect the Board to establish a so-called "fair price" above what Canadian buyers are willing and able to pay. The owner is denied international free-market prices. The lesson for Canadian art-owners: Never bring potentially-important pieces of art into Canada.