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JUDICIAL REVIEW AND STATUTORY APPEAL - Standard of review - Reasonableness

Tuesday, July 17, 2018 @ 10:07 AM  

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Application by an auction house for judicial review of a Canadian Cultural Property Export Review Board decision to delay the issue of an export permit. The Board concluded that the painting Iris bleus, jardin du Petit Gennevilliers, 1892, by Gustave Caillebotte, was of “national importance” under s. 11(1)(b) of the Cultural Property Export and Import Act and delayed the issue of an export permit for it for six months to allow an institution or public authority in Canada to make a fair offer to purchase it.

HELD: Application allowed. The Board’s interpretation of “national importance” was not reasonable. The Board held that an object was of national importance even if the object or its creator had no connection to Canada, if the loss of the object would deny a segment of the population exposure to or study of its cultural traditions or those of other Canadians. The ordinary meaning of s. 11(1)(b) of the Act suggested that the object had to have a direct connection to Canada. That interpretation accorded with the scheme of the Act. To suggest that an object was of national importance only because of its value for study, as the Board did, would undermine the “national importance” criterion and render it meaningless. The legislative history confirmed that Parliament intended the Act to have limited application and focus on objects with a more direct connection to Canadian heritage. The Board’s unreasonable interpretation of “national importance” caused it to make an unreasonable determination of whether the painting met the requirements. The Board unreasonably focused only on the painting’s provenance, rarity, research value and desirability under s. 11(1)(a). The artist and the subject matter were not Canadian and the painting had no connection to the Canadian public or Canadian impressionism. The matter was referred back to a different Board for reconsideration.

Heffel Gallery Ltd. v. Canada (Attorney General), [2018] F.C.J. No. 613, Federal Court, M.D. Manson J., June 12, 2018. Digest No. TLD-July162018004