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JUDICIAL REVIEW AND STATUTORY APPEAL - Standard of review - Reasonableness

Wednesday, June 05, 2019 @ 8:33 AM  


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Appeal by the Attorney General from a decision allowing the respondent’s application for judicial review of a decision of the Canadian Cultural Property Export Review Board refusing to grant him a cultural property export permit to send a painting to its purchaser in England. The Board refused to grant the permit because the painting was on the Canadian Cultural Property Export Control List, it was of outstanding significance, and it was of such a degree of national importance that its export would significantly diminish the national heritage. The Federal Court found that the Board’s interpretation of “national importance” pursuant to s. 11(1)(b) of the Cultural Property Export and Import Act was unreasonable because it was overly broad and that its determination that the painting was of “national importance” was also unreasonable.

HELD: Appeal allowed. The Board’s decision was restored. The Federal Court erred in failing to properly apply the standard of reasonableness. The Board’s interpretation of its home statute was entitled to deference, and the Federal Court’s failure to defer to the Board’s decision was a function of its disguised correctness review. The Board’s interpretation of s. 11(1)(b) of the Act was reasonable. The degree of importance of the object remained a question for the Board’s expert members to assess on a case-by-case basis. The respondent’s contention that the Board conflated the “outstanding significance” and “national importance” criteria by effectively reading out the legislative criteria of national importance was unfounded. The Board’s determination that the painting met the “national importance” requirement was also reasonable. In reaching the conclusion that the painting was of “national importance”, the Board discussed the provenance of the object, the impact of its creator, its origin, its authenticity, its condition, its completeness, its rarity or uniqueness, its representativeness, its documentary or research value, as well as contextual associations that it might have. It was open to the Board to discount the parts of the respondent’s evidence that were premised on a connection to Canada and to consider more broadly factors mentioned in the Guide to Exporting Cultural Property from Canada.

Canada (Attorney General) v. Heffel Gallery Ltd., [2019] F.C.J. No. 424, Federal Court of Appeal, R. Boivin, M.J.L. Gleason JJ.A. and M. Rivoalen A.C.J., April 16, 2019. Digest No. TLD-June32019008