Art Curators and Dealers Still Can’t Agree on Court Decision

A dealer suggested some collectors have been scared off by the controversy.

Dealers Want Fewer Export Restrictions

“We agree with Judge Manson’s decision and we are disappointed with the appeal,” ADAC president Sharon London Liss stated at the panel. “We need to be able to tell clients with confidence that they can dispose of a work…in a manner unfettered by roadblocks and interference.”

“I do basically feel the [Cultural Property Export and Import] Act needs to be reviewed at this point,” Uno Langmann Fine Art director Jeanette Langmann said, calling the law “antiquated” and suggesting that changes are needed to “separate export side from donation side” and “to make the process easier.”

London Liss argued, too, that the market for Canadian art has already been negatively affected by the controversy. “We have clients saying that they are no longer going to buy Canadian art,” she stated, for fear that they won’t be able to export it for sale in future. “It will also affect how collectors decide to put pieces on loan to institutional exhibitions.”

Overall, dealers are looking for input into a review of this ruling, and its related legislation: “We have advised Heritage and Trade in Ottawa that ADAC must have a voice at the table in any discussions related to [the Act],” London Liss concluded.

“This is an issue we’ll go all the way to the mat for, and then some,” said the museum curator on the panel.

Museum Curator Hopes to Defend Art-Donation Incentives

Museum representatives and curators are looking to be part of the legal review process too—with a different perspective to bring.

“I only moved to Canada eight months ago,” admitted AGO chief curator Julian Cox, but he said he was already clear on the June ruling’s impact: “The implications are seismic for our field. …Its impact on growth and diversity of collections cannot be underestimated.”

Cox pointed to the AGO’s holdings of works by Rubens, Bernini, Arbus and Köllwitz, which had been donated to the AGO through the Act’s incentive provisions in past decades. “These are the kinds of objects that would not have passed today,” said Cox.

Cox also noted that guidelines issued by the Department of Canadian Heritage in 2013, and still referred to today, state that “national heritage is inclusive,” rather than more restrictive, as Judge Manson ruled. He noted that with an increasing immigrant population in Canada, “future diversification of collections is essential” and “we need generosity of collectors and patrons to enable us to move forward and grow.”

At the same time, Cox admitted, the rulings around export “impact deaccessioning decisions” at the AGO too—decisions which sometimes hinge on market access and maximizing returns so that more appropriate works can be purchased for the gallery collections.

“We have been working with the Canadian Art Museum Directors Organization, where there is lots of conversation,” Cox said. “And we are working closely with Musée des beaux-arts de Montreal in a motion to intervene that will go to the Federal Court of Appeal at the end of this year.”

Cox added: “This is an issue we’ll go all the way to the mat for, and then some.”

It can be dangerous to open up legislation to review, said the CPERB chair.

Manager Notes Complexity of Existing Law

Though both the dealers and curator on the panel seemed open to reviewing the legislation itself, a longtime scholar and arts manager—Sharilyn Ingram, who is currently head of the Cultural Property Export Review Board—warned that opening up the Act to changes could be dangerous for both dealers and museums.

“One of the positions I have heard in Ottawa is that it can be dangerous to open up legislation,” said Ingram, “because you may find whole favourable regimes regarding tax credits [for donating artworks to museums] could be thrown out.”

Ingram also tried to counter the notion that CPERB, whose own export-permit decisions were put into question by the Heffel case ruling, somehow always favours museums and institutions in its rulings.

Of the 10 people on the board of CPERB, Ingram pointed out, up to 4 can be from institutional/curatorial field and up to 4 can be the commercial/collecting field. This guideline regarding board makeup is actually part of the law itself, Ingram pointed out—Section 18.2 specifically—so that “all the opinions are right there in the decision-making” of the board.

Further, Ingram noted that the law was built to recognize the complexity of the art sphere. “The whole design of the act is extremely Canadian,” Ingram stated, in that it recognized “there are many conflicting positions.”

And yet some things the Act could not have foreseen have come to pass: “When the Act was passed it was felt export control was the most serious issue,” says Ingram. The tax incentives for art donation were less of a focus then, but in the intervening decades those incentives have “deeply changed relationships between artists, collectors and galleries.”

As proof of how this legislation is now used, versus how it was conceived, Ingram said, “CPERB sees 500 to 590 applications for certification of cultural property per year…and only 5 to 10 export-permit reviews.”

In trying to acknowledge complication and different points of view in the legislation itself, the administration of the Act has also become quite convoluted, it seems. Export permits are administrated by the Canada Border Services Agency, but are reviewed by examiners and a CPERB board appointed on the advice of Canadian Heritage.

And CPERB, though integral to the execution of the Act, is independent of Canadian Heritage. “We report directly to Parliament,” Ingram said. “We are in no way in control of or involved in the legislative process,” should a review of the Act actually take place.

“There is still no perfect checklist for what the standards are,” noted an art historian. And there never have been.

Historian Describes Tension Between Markets and Museums

The roots of conflict between institutional collections and market forces was illuminated in Greg Humeniuk’s remarks, which traced the history of the Act’s impetus and development. In 1919, the art historian noted, a Drummond collection from Montreal was sold in the UK. In 1927, the James Ross collection was sold in London. Later on, a major Van Horne collection was sold in NYC. And in 1957, there was a sale of 221 Paul Kane works to Texas collection.

“Significant collections were being lost from Canada,” Humeniuk said. “From the 1950s to 1967 [in particular] there was tension building around the loss of patrimony and the desire for its preservation.”

The 1970 UNESCO Convention on Cultural Property upped the ante for Canada, as a signatory, to develop some kind of cultural property legislation. In 1974, there was the first reading of the Act in Canada, and Humeniuk said, “throughout Parliament and Senate debates, there was tension between the need to have commerce unfettered and the need to protect patrimony.”

What the Canadian Cultural Property Export and Import Act did not do, ultimately, is create definitive guidelines for export and property certification, a situation that perhaps has contributed to the current confusion on the part of judges and others as to the nature of the law. Said Humeniuk: “There is still no perfect checklist for what the standards are.”

Lawyer Reflects on a Landmark Ruling

For his part, lawyer Stephen Smart indicated that the June 12 court ruling truly “upset the apple cart,” representing “a huge departure from 40 years of how export has been determined” in Canada. In terms of law, Smart indicated that Judge Manson rested most of his ruling on Section 11 of the Act rather than other relevant sections. Manson also didn’t take into consideration the 2013 evaluation guidelines issued by Canadian Heritage.

“The [CPERB] board has had a very organic, proactive idea of what is important to Canada,” said Smart, one that supported multicultural visions of Canada, as well as the potential study value of an artwork, rather than its past study history in Canada.

In the June 12 ruling, in other words, the court looked at an actual Caillebotte painting Heffel was trying to export, as well as the existing exhibition history and academic history on it in Canada—rather than weighting its potential exhibition and study future, and rather than looking at the importance of French Impressionism in general to Canadian art and artists.

Smart, himself a collector, pushed back on the implication by private dealers, in recent months, that CPERB effectively blocks works from export. “It can only implement a delay of six months,” Smart clarified. “It’s a delay, not a block.”

What’s next remains uncertain: “The case is on appeal, and until the appeal is heard, we don’t know what result might be,” Smart observed. “If [the original ruling is] supported, it would be up to Canadians’ will and the will of institutions to ask: Do we need amendments to the Act?”

A change was made to this article on November 12, 2018, in shifting the last-name usage “Liss” to “London Liss” for clarity.

Leah Sandals

Leah Sandals is a writer and editor based in Toronto. Her arts journalism has appeared in the Toronto Star, National Post and Globe and Mail, among other publications, and her creative work has been published in Prism, Room and Freefall. She can be reached via leahsandals.ca.

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