THE APPLICATION FOR THE EXPORT LICENCE
In November 2016 the fine-art auction house Heffel Gallery Limited ('Heffel') held a public auction of Iris bleus, jardin du Petit Gennevilhers, 1892, by Gustave Caillebotte ('the Painting'). A commercial gallery based in London, England, purchased the Painting for $678,500 CAD. As the Painting fell within Group V of the Canadian Cultural Property Export Control List, CRC, c 448 ('the Control List') Heffel was required to apply to the Canadian Cultural Property Export Review Board ('the Board') for an export permit under section 40 of the Cultural Property Export and Import Act ('the Act'). (2) Under section 11 of the Act the criteria by which to assess whether an object in the Control List was the subject of an application for an export permit were:
Whether that object was of outstanding significance by reason of its close association with Canadian history or national life, its aesthetic qualities, or its value in the study of the arts or sciences; (3) and
Whether the object was of such a degree of national importance that its loss to Canada would significantly diminish the national heritage. (4)
The Board, on the expert advice of the Chief Curator of the Art Gallery of Greater Victoria ('the Expert Examiner'), determined that the Painting was of outstanding significance and national importance and denied the grant of an export permit for the Painting.
REVIEW OF THE BOARD'S DECISION
Heffel then requested the Board to review its application for an export permit. An oral hearing was scheduled before a three-member panel. One member of the panel was Ms Lochnan who had been employed with the Art Gallery of Ontario ('AGO'). Both Heffel and the Expert Examiner made written submissions and then were provided with each other's submissions in order to provide a rebuttal. Heffel requested the opportunity to cross-examine the Expert Examiner at the oral hearing, but the Board denied this request.
Following the hearing, the Board upheld its decision that the Painting was of outstanding significance and national importance under section 29 and section 11 of the Act. For its decision the Board relied on the Department of Canadian Heritage Guide to Exporting Cultural Property from Canada, June 2015, which stated that for the purposes of the Act national heritage included cultural property that originated in Canada as well as international cultural property that reflected Canada's cultural diversity or that enriched Canadians' understanding of different cultures, civilisations, time periods and their own place in history and the world. The Board acknowledged the opinion contained in reports by Heffel's experts that the Painting had no connection to Canadian Impressionism, had no influence on the Canadian public or artistic practices of Canadian artists and had no connection to Canadian artists engaged in Impressionism. However, the Board held that an object could be considered to be of 'national importance' even if the object or its creator had no connection to Canada, if the loss of that object to Canada would deny a segment of...