Letter to the Minister from the Chair of the Canadian Cultural Property Export Review Board

Sharilyn J. Ingram
Chair, Canadian Cultural Property Export Review Board
344 Slater Street, 15^th Floor, Suite 400
Ottawa, ON K1A 0E2

The Honourable Steven Guilbeault
Minister of Canadian Heritage
15 Eddy Street
Gatineau, QC K1A 0M5

Dear Minister,

It is an honour to present the annual report of the operations of the Canadian Cultural Property Export Review Board (CCPERB) for the fiscal year 2019-2020.

Maintaining our steadfast dedication to our mandate, CCPERB met the unique challenges of 2019-2020 by embracing renewal and innovation. During this fiscal year, CCPERB’s important functions under the Cultural Property Export and Import Act were highlighted both in judicial decisions and in changes to the Act, resulting in a greater distinction between the criteria for certification of cultural property and the standard applied by CCPERB in the review of applications for export of cultural property.

In order to help our stakeholders understand these changes, as well as to facilitate access to CCPERB’s services, we undertook a policy renewal exercise that produced new and clarified policies and information resources. Notably, CCPERB renewed its entire web presence in order to give applicants easier access to this improved information, all while continuing to administer the important duties outlined in the Cultural Property Export and Import Act.

In 2019-2020, CCPERB reviewed 333 applications for certification, representing 1091 objects or groups of objects acquired by 77 diverse collecting institutions all across Canada.

This work ensured that donors have access to the incentives established in the Act, while also ensuring that Canadians have access to cultural property of outstanding significance in museums, galleries, libraries, and archives across the country.

CCPERB also considered one request to review an application for an export permit in 2019-2020. During this fiscal year, an export delay period imposed by CCPERB during the previous fiscal year provided an opportunity for a public institution in Canada to acquire a letter written by the prominent Nova Scotian George Wright while on board RMS Titanic, on the day the ship set sail. This unique record will now be accessible to future generations at the Public Archives of Nova Scotia, exemplifying the Cultural Property Export and Import Act working as intended.

The milestones I have highlighted here, together with the detailed report that follows, serve as powerful evidence of our commitment to uphold the spirit and intent of the Cultural Property Export and Import Act. This report also speaks to the dedication of CCPERB’s members and staff who maintained critical operations in the face of adversity, and who continue to work together to protect, preserve, and support access to the finest examples of Canada’s cultural property.

This year was a momentous time for all Canadians, and indeed for the entire global community, as we confronted the challenges of the COVID-19 pandemic together. Even well before this historic event affected the communities involved in the acquisition, preservation, and exchange of cultural property, 2019-2020 represented a year of unprecedented change and adaptation for CCPERB, as this report will show.

On behalf of the Canadian Cultural Property Export Review Board, I am proud to report on our operations for the fiscal year 2019-2020.

Sincerely,

Sharilyn J. Ingram, Chair
Canadian Cultural Property Export Review Board

Report of the Canadian Cultural Property Export Review Board

Introduction

The Canadian Cultural Property Export Review Board (CCPERB) performs a vital function for parties seeking review of an application for a cultural property export permit, as well as for cultural property donors and collecting institutions seeking to enhance public collections in an environment of shrinking acquisition budgets and a growing international market for Canadian cultural property.

This report provides an account of CCPERB’s operations for the fiscal year 2019-2020, and features statistics to illuminate key duties relating to cultural property export and the certification of cultural property for income tax purposes.

This report also highlights a number of prominent legislative, judicial, and policy matters that shaped CCPERB’s work throughout the year. Importantly, as the 2019-2020 fiscal year came to a close, Canada and the global community confronted the first stages of the COVID-19 pandemic. Like other federal organizations, CCPERB adapted to these challenging circumstances and persevered in its duty to uphold the objectives of the Cultural Property Export and Import Act, which at its core seeks to protect, preserve, and provide public access to cultural property in Canada. This report will describe CCPERB’s accomplishments in this regard.

The Canadian Cultural Property Export Review Board

The Canadian Cultural Property Export Review Board is an independent, quasi-judicial administrative tribunal established under the Cultural Property Export and Import Act. CCPERB meets four times per year in order to:

• Review applications for export permits upon request of the applicant;
• Determine the amount of a fair cash offer for an institution or a public authority to purchase cultural property; and
• Certify cultural property for income tax purposes.

CCPERB reports to Parliament through the Minister of Canadian Heritage, but operates at arm’s length from its portfolio department to ensure the autonomy of its decision-making powers.

The Cultural Property Export and Import Act

The Cultural Property Export and Import Act (the Act) establishes a system of controls for the export from Canada of cultural property, and supports the prevention of illicit international traffic in cultural property. The intent of the Act is to balance the rights of cultural property owners with the civic good derived from public access to objects of outstanding significance and of national importance.

Specific elements of the legislation are administered or enforced by a number of federal organizations, including:

• Department of Canadian Heritage;
• Canada Border Services Agency;
• Canada Revenue Agency; and
• Administrative Tribunals Support Service of Canada.

Changes to the Cultural Property Export and Import Act

Two-tier buffet, 1785-1800
Donors: Joan & Derek Burney
Canadian Museum of History,
2018.61.1 a-b, IMG2019-0235-0121-Dp1

In June 2019, the Government of Canada passed the Budget Implementation Act, bringing into force amendments to the Income Tax Act and the Cultural Property Export and Import Act.

Specifically, the amended legislation removed “national importance” as a factor CCPERB must consider in order to certify cultural property for income tax purposes. Applicants must continue to demonstrate that the object meets the criteria for outstanding significance described in subsection 11(1)(a) of the Cultural Property Export and Import Act.

The amendments apply only to the certification of cultural property for tax purposes. There was no change to the legislation relating to the review of cultural property export permits, which continues to involve a determination of the cultural property’s “outstanding significance” and “national importance”.

For additional information about the changes to the Act, please see “Renewal of CCPERB Policies and Information Resources”.

Review of Applications for Export Permits

As part of its system of protections, the Act establishes a Canadian Cultural Property Export Control List, which identifies objects or classes of objects, the export of which is necessary to control in order to preserve the national heritage in Canada. Subsection 4(2) of the Act identifies inclusions in the Control List as follows:

1. objects of any value that are of archaeological, prehistorical, historical, artistic or scientific interest and that have been recovered from the soil of Canada, the territorial sea of Canada or the inland or other internal waters of Canada;
2. objects that were made by, or objects referred to in paragraph (d) that relate to, the aboriginal peoples of Canada and that have a fair market value in Canada of more than five hundred dollars;
3. objects of decorative art, hereinafter described in this paragraph, that were made in the territory that is now Canada and are more than one hundred years old:
   1. glassware, ceramics, textiles, woodenware and works in base metals that have a fair market value in Canada of more than five hundred dollars, and
   2. furniture, sculptured works in wood, works in precious metals and other objects of decorative art that have a fair market value in Canada of more than two thousand dollars;
4. books, records, documents, photographic positives and negatives, sound recordings, and collections of any of those objects that have a fair market value in Canada of more than five hundred dollars;
5. drawings, engravings, original prints and water-colours that have a fair market value in Canada of more than one thousand dollars; and
6. any other objects that have a fair market value in Canada of more than three thousand dollars.

The Act includes criteria to help determine whether an object that is included in the Control List may be issued an export permit. When an application for a cultural property export permit is refused by permit officers of the Canada Border Services Agency and their expert examiners, the applicant may request a review by CCPERB. In these cases, CCPERB first must determine if the object is included in the Control List, and whether the object meets the criteria for “outstanding significance” and “national importance” set out in the Act, specifically:

• Whether the object is 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; and
• Whether the object is of such a degree of national importance that its loss to Canada would significantly diminish the national heritage.

If CCPERB determines that an object meets all of the above criteria, it will then form an opinion as to whether an institution or public authority in Canada might make a fair offer to purchase the object within six months after the date of its decision in the proceeding.

If so, CCPERB may establish a temporary export delay period of two to six months. These temporary export delay periods provide Canadian institutions with an opportunity to acquire significant cultural property facing permanent export from Canada.

In 2019-2020, CCPERB conducted one (1) review of a cultural property export permit upon request of an applicant.

During this fiscal year, on April 25, 2019, the export delay period expired following a decision made by CCPERB during the previous fiscal year.

Fair Cash Offers

When an object is subject to a temporary export delay period established by CCPERB, the export permit applicant may reach an agreement with an organization to purchase the cultural property. If these parties cannot reach an agreement, either party may request that CCPERB determine what would constitute a fair cash offer.

While the cultural property owner is under no obligation to accept any purchase offer, the fair cash offer determination is intended to facilitate an exchange where negotiations have stalled. If the owner rejects an offer that is equal to or greater than the fair cash offer amount determined by CCPERB, then no export permit will be issued for a period of two years from the date of the original notice of refusal. At the end of the two-year moratorium, the permit applicant may submit a new application.

In 2019-2020, CCPERB made no (0) fair-cash- offer determinations.

Certification of Cultural Property

The Cultural Property Export and Import Act provides a system of incentives designed to help preserve significant cultural property in Canada by offering tax incentives to donors or vendors who reach a disposition agreement with a designated museum, gallery, library, or archive.

77: Number of Designated Organizations that submitted applications for objects to be certified 2019-2020

Designated institutions or public authorities may apply for certification of cultural property on behalf of the donor or vendor. These organizations meet the necessary standards to preserve cultural property and make it accessible to the public.

88%: Percentage of applications approved (Tax Certificate issued)

Until June 2019, certification decisions took into account both the “outstanding significance” and the “national importance” criteria described inthe Act. In June 2019 the Government of Canada amended both the Income Tax Act and the Cultural Property Export and Import Act to remove “national importance” as a factor CCPERB must consider in order to certify cultural property for income tax purposes. Applicants seeking to have cultural property certified must continue to demonstrate that the object meets the criteria for outstanding significance described in the Act.

1091: Number of objects, including collections or groups of objects in applications for certification 2019-2020

In 2019-2020, CCPERB reviewed 333 applications for certification, excluding files seen more than once. These applications represented 1091 objects, collections, or groups of objects. Although these totals are indicative of a significant volume of applications and of objects of cultural property considered for certification by CCPERB, these totals were reduced by measures put in place due to the COVID-19 pandemic, which necessitated the cancellation of CCPERB’s March 2020 meeting. Applications received for that meeting will be considered in June 2020.

The Cultural Property Export and Import Act uses the term “object(s)” to refer to all forms of cultural property disposed of, or proposed to be disposed of, to an institution or a public authority designated under the Act.

Objects may include, for example, archival cultural property, books and ephemera, scientific specimens, objects of natural history, fine art, and any other materials recognized as cultural property under the Act.

Number of applications by province or territory (excludes files seen more than once)

Redeterminations

As part of the certification process, CCPERB makes determinations with respect to the fair market value of the cultural property put forward for certification. Donors or vendors who do not agree with a CCPERB determination of fair market value may request a redetermination within 12 months of the date of CCPERB’s decision. Subsequently, donors or vendors who do not agree with the redetermination of fair market value may appeal the decision to the Tax Court of Canada within 90 days after the day on which the Cultural Property Income Tax Certificate is issued.

In 2019-2020, CCPERB reviewed 6 requests for a redetermination; among these, none were appealed to the Tax Court of Canada. Also during this fiscal year, CCPERB received one notice of appeal for a redetermination made during the 2018-2019 fiscal year.

Milestones 2019-2020

Federal Court of Appeal Decision

Iris bleus, jardin du petit Gennevilliers,
1892, by Gustave Caillebotte,
acquired by the Art Gallery of Ontario

On April 16, 2019, the Federal Court of Appeal rendered its decision in Canada (Attorney General) v. Heffel Gallery LTD. The subject of the ruling was a June 2018 Federal Court of Canada decision concerning a CCPERB decision to delay the issuance of an export permit for a painting, Iris bleus, jardin du Petit Gennevilliers, by the French artist Gustave Caillebotte. CCPERB had based its decision on its determination that the painting is included in the Control List and is of outstanding significance and national importance, and that an institution or public authority in Canada might make a fair offer to purchase the painting. The Federal Court of Canada ruled that CCPERB’s determination that the painting is of national importance was unreasonable.

In April 2019, the Federal Court of Appeal set aside the judgment of the Federal Court, dismissed the application for judicial review, and restored CCPERB’s decision. The painting subsequently was purchased by the Art Gallery of Ontario in August 2019.

Renewal of CCPERB Policies and Information Resources

Prior to the ruling of the Federal Court of Appeal described above, the Government of Canada acted to address concerns expressed by the stakeholder community regarding the original Federal Court ruling. Consequently, the Income Tax Act and the Cultural Property Export and Import Act were amended to remove “national importance” as a factor CCPERB must consider in its certification decisions, determinations relating to export continue to address the standards both of national importance and outstanding significance, while certification decisions are founded on a determination exclusively of the cultural property’s outstanding significance.

As a result of the amended legislation, CCPERB initiated a process to update the information it provides to applicants, not only to ensure this information reflected the revised statutory language, but also to foreground the principles of accountability, consistency, and fairness in every CCPERB decision.

The policies, guidelines, and information resources produced or renewed by CCPERB during 2019-2020 are highlighted below.

Model Directive on Procedure in the Review of an Application for an Export Permit

The Model Directive on Procedure in the Review of an Application for an Export Permit, adopted by CCPERB in December 2019, is intended to provide guidance to applicants on CCPERB’s practice and interpretation of relevant legislation. The model directive outlines the procedure CCPERB will follow in considering a request for review of an application for an export permit made by an applicant pursuant to section 29 of the Cultural Property Export and Import Act, unless the circumstances of a particular case require otherwise. CCPERB’s objective in issuing this model directive is to ensure CCPERB proceedings are informal, expeditious, fair, and transparent.

Apprehension of Bias

CCPERB members have a range of expertise in the types of cultural property that regularly come before CCPERB for decision. This expertise is set out in the membership requirements of the Cultural Property Export and Import Act, and typically is founded on extensive personal engagement in the collection or exhibition of cultural property, or in cultural property markets. Consequently, there may be instances where there is a potential for members to be in a conflict of interest or in a position of a reasonable apprehension of bias. In this context, CCPERB issued a Policy Statement on Conflict of Interest and Reasonable Apprehension of Bias, as an expression of CCPERB’s commitment to upholding fair and impartial decision making by preventing circumstances that would create a conflict of interest or a reasonable apprehension of bias.

Guide for Monetary Appraisals

CCPERB issued a new Guide for Monetary Appraisals in December 2019. CCPERB has invited feedback from the stakeholder community regarding potential improvements to the guide, and initiated consultations with organizations and individual appraisers in early 2020. These consultations will continue into the next fiscal year, with a view to issuing an updated guide in 2020-2021.

New CCPERB Website

Launched in January 2020, CCPERB’s updated website features all of the new information resources noted above, as well as improvements to the structure and clarity of the information required by applicants and the general public to understand CCPERB’s policies, procedures, and mandate. In particular, CCPERB’s new website features:

• Clarification of the outstanding significance criteria for certification;
• Clarification of the outstanding significance and national importance criteria for requests for review of an application for export;
• Improved guidelines to assist with applications for certification; and
• New procedures for the review of an application for an export permit.

To ensure applicants and other stakeholders have time to review and adopt these new resources, a portion of CCPERB’s former website, which was hosted by the Department of Canadian Heritage, will remain online during a transition period ending in 2020-2021.

Response to COVID-19

Every Canadian, and every Canadian federal organization, has been challenged to respond responsibly and resourcefully to the international COVID-19 pandemic. As of March 2020, CCPERB and its staff are working remotely and adhering closely to the measures put in place by federal, provincial, and municipal authorities to protect the health and well-being of the public.

CCPERB has coordinated its actions closely with the Administrative Tribunals Support Service of Canada and other federal organizations. Prominently, these actions included the cancellation of the March 2020 meeting and the announcement that the deadline for applications to be submitted for the June 2020 meeting would be extended. CCPERB updated its website regularly in order to keep applicants and other stakeholders informed of these decisions, as well as providing information about contingency plans that would enable CCPERB to process as many applications as possible, as efficiently as possible.

CCPERB appreciates the efforts being made by applicant organizations during this challenging time. The Board Members wish to express their thanks for the patience and collaboration of stakeholders as we work first and foremost to ensure the well-being of employees and the general public.

CCPERB Members

CCPERB consists of a Chairperson and up to nine other members appointed by the Governor in Council on the recommendation of the Minister of Canadian Heritage.

Members are selected for their expertise in a range of fields relating to cultural property, including professional expertise gained at art galleries, museums, archives, libraries or other collecting institutions in Canada, or as dealers in or collectors of art, antiques or other objects that form part of the national heritage.

Specifically, section 18 of the Cultural Property Export and Import Act establishes membership as follows:

• A chairperson and one other member chosen generally from among residents of Canada;
• Up to four other residents of Canada who are or have been officers, members, or employees of art galleries, museums, archives, libraries, or other collecting institutions in Canada;
• Up to four other residents of Canada who are or have been dealers in or collectors of art, antiques, or other objects that form part of the national heritage.

Under the Act, decisions must be made by no fewer than three members, at least one of whom was appointed under the institutional category, and at least one of whom was appointed under the dealer/collector category.

CCPERB Board Members:
From left to right, top row: Laurie Dalton, Monte Clark, Glen A. Bloom, Paul Whitney, Pierre-François Ouellette
Bottom row: Madeleine Forcier, Sharilyn J. Ingram, Patricia Feheley, Theresa Rowat
Absent: Dana Soonias

The following table identifies members with active terms during 2019-2020.

Meetings

Artifact Images
Victoria Cross Medal, Colonel David Vivian
Currie, V.C. CWM 20180064-001c
Tilston Memorial Collection of Canadian
Military Medals Canadian War Museum

CCPERB meets four times per year. At these meetings, CCPERB considers requests for the review of cultural property export permits, and applications for the certification of cultural property. Under the Cultural Property Export and Import Act, CCPERB must render a decision, either for certification or for the review of applications for an export permit, within four months after the date a request is received.

During 2019-2020, meetings were held in Ottawa on

• June 18-21, 2019
• September 11-13, 2019
• December 11-13, 2019

The meeting originally scheduled for March 24 – 27, 2020, was cancelled as part of the collective effort to mitigate health risks during the COVID-19 pandemic.

Winnipeg Engagement with Stakeholders

Once per calendar year, CCPERB makes an effort to meet directly with stakeholders outside of the National Capital Region, as part of its goal to support transparency and accountability in how CCPERB makes its decisions. On November 5, 2019, CCPERB members met in Winnipeg with representatives of designated organizations in Saskatchewan and Manitoba. The dialogue focused in particular on the certification process and the information required from applicants in order for CCPERB to arrive at a decision.

CCPERB Secretariat

The Secretariat to CCPERB is part of the Administrative Tribunals Support Service of Canada (ATSSC). The Secretariat supports CCPERB and its applicants by:

• Providing administrative services to facilitate CCPERB meetings, events, and planning.
• Providing services to applicants by processing applications submitted to CCPERB, as well as communicating with applicants and other stakeholders, at the direction of CCPERB, to clarify rules, standards, and information required by CCPERB to support the decision-making process.
• Providing executive support to CCPERB and liaising with ATSSC and other Government of Canada organizations and officials.
• Developing policies, guidelines, and communications, at the direction of CCPERB, to support consistency, transparency, and integrity in CCPERB operations, consistent with the policies and priorities of the Government of Canada.

Contact the Secretariat

For questions about CCPERB operations or information contained in this Annual Report, please contact the Secretariat at:

Secretariat to the Canadian Cultural Property Export Review Board
344 Slater Street, 15^th Floor, Suite 400
Ottawa, Ontario K1A 0E2

ccperb@tribunal.gc.ca

• Phone:
  • 613-943-8360
  • 1-833-254-8944
• Fax:
  • 613-943-8841