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A win for Canadian museums

The Montreal Museum of Fine Arts (MMFA) is pleased with the recent decision by the Canadian Federal Court of Appeal, which overturned the judgment by the Federal Court rendered on June 12, 2018. That judgment restricted the interpretation and application by the Canadian Cultural Property Expert and Review Board (CCPERB) of the criterion of national importance that governs export permits for cultural property, and as a result, the tax incentive certification used by Canadian museums. This jeopardized donations to Canadian art museums and institutions and the enrichment of our collective heritage with non-Canadian works of art.

The Federal Court of Appeal unanimously recognized the validity of the arguments made by the Attorney General and was made aware of the impact on museums, among others, the nine Canadian museum organizations and institutions that joined forces for the case, at the behest of the MMFA. CCPERB’s expertise has once again been confirmed: works of art do not need to be Canadian only or directly related to the country’s history to benefit from protection.

Nathalie Bondil, Director General and Chief Curator of the MMFA, initiated the joint effort and had this to say: “We have won a case of historic importance for our collections in Canada: a universal heritage. We’re happy, in that it also demonstrates the effectiveness of a united front by museums coast to coast: this innovative approach recognizes that there are universal works of universal importance. From a philosophical perspective, this is extremely important. The MMFA spearheaded the initiative, and we’re proud of it! We would like to acknowledge this team effort, our partners in the Canadian Art Museums Directors’ Organization (CAMDO), the Art Gallery of Ontario and other signatories, museums and a library, as well as our legal counsel, in particular, François Le Moine. The Federal Court of Appeal confirmed CCPERB’s role and expertise in this matter; it’s reassuring and we are thankful to it.

The background

This story first began in June 2018, when the Federal Court ruled that CCPERB was unreasonable in its decision not to grant a cultural property export permit for Gustave Caillebotte’s painting Iris bleus, jardin du Petit Gennevilliers to a buyer in the UK. The judgment also called into question the interpretation of criteria relating to the awarding of permits, based on the “outstanding significance” and their “national importance” of a work of art, meaning that export of the work would significantly diminish the national heritage. It therefore seriously restricted the ability of Canadian museums to have a work certified as cultural property with CCPERB.

First, this revision limited the definition solely to Canadian works, greatly reducing its impact and allowing other works to leave the country more easily. Second, it made it less attractive for benefactors to donate foreign works to museums, since the definition governed tax incentives to encourage people to sell or donate significant objects to Canadian cultural institutions.

In summary, the decision not only jeopardized donations to Canadian museums but also made it easier for many non-Canadian works to leave the country and Canadian collections.

Faced with this situation, the MMFA enlisted CAMDO and eight other institutions — the Art Gallery of Ontario, Royal Ontario Museum, Vancouver Art Gallery, Remai Modern, Winnipeg Art Gallery, Thomas Fisher Rare Book Library of the University of Toronto Libraries, Musée d’art contemporain de Montréal and Beaverbrook Art Gallery – to file a motion to intervene with the Federal Court of Appeal.

In light of the arguments presented by the Attorney General and supported by the association, the Federal Court of Appeal overturned the ruling by Justice Mason of the Federal Court on April 16.