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Art & Architecture Ottawa appeals court ruling allowing export of another artwork it deems important to Canadian heritage

A French Impressionist painting bought by a British art dealer at a Toronto auction is once again at the centre of a legal battle over whether the artwork is too important to Canada’s national heritage to be allowed to leave the country.

The federal government is appealing a court ruling made in June that cleared the way for the painting to be shipped to its London buyer.

The decision was the first time that the courts have weighed in on Canada’s rules for exporting art, which came under debate this spring over the National Gallery of Canada’s proposed sale of a Marc Chagall work. That sale, slated to be held at a New York auction house, was cancelled after intense public criticism.

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Iris bleus, jardin du Petit Gennevilliers (1892) by Gustave Caillebotte sold for $678,500 at a Heffel Gallery auction on Nov. 23, 2016. The Heffel Gallery then applied to the Canada Border Services Agency for an export permit to send the art to Britain, but was denied. Heffel appealed to a government review board, which also said the painting should not be exported because it was too important to the study of art in Canada. Heffel then took the unprecedented step of requesting a judicial review from the Federal Court.

The 1892 painting by Gustav Caillebotte titled Iris bleus, jardin du Petit Gennevilliers was sold by a Canadian auction house to a British gallery for $678,500 in 2016.

Justice Michael Manson sided with Heffel in June, saying the Canadian Cultural Property Export Review Board was not following the letter of the legislation and was too broad in interpreting what it meant for art to be important to Canada’s national heritage. The Caillebotte canvas − painted in France by a French artist of a French garden − was brought to Canada by a private collector in the 1960s and has not been exhibited publicly.

Manson ordered the review board to rehear Heffel’s case. Along with its appeal, the federal government has requested a stay on that order. In the meantime, the review board says it is conducting all its work based on Manson’s guidance.

“As an administrative tribunal, the board has acted immediately to integrate the Heffel Decision ruling into the definition of national importance as embedded in the Act, and apply its clarifications,” the board’s chair, Sharilyn Ingram, said in a statement.

The board said it will also use the ruling for guidance when it certifies cultural items for income-tax purposes.

David Heffel, president of the auction house, said he was disappointed in the appeal.

“The process of obtaining a permit to export this work has taken much longer than any reasonable person would have expected,” he said in a statement. “We and our legal team are confident that the Federal Court of Appeal will agree with us, and that the owner’s property rights will be finally recognized and upheld.”

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The review board does not have the power to block exports indefinitely. Instead, it can impose a delay period of up to six months, during which the art or historical artifact is advertised as being available for purchase. A Canadian museum or gallery can then offer to buy the item, and sometimes do so with the help of a government grant. If the owner refuses, the object must stay in Canada for two years before the owner can try to export it again.

Government statistics show that export applications are not denied outright often.

Data for the 2016-17 year – the most recent figures, which were only made public last week – show that of 301 applications to permanently export cultural property, just three permits were refused (including the Caillebotte). The year before, seven of 441 applications were denied.

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