This page provides access to CCPERB’s policy documents and other principles that inform the processes, procedures, standards and steps involved in CCPERB’s operations.
August 23, 2023
As the Government of Canada examines measures to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Canadian Cultural Property Export Review Board (CCPERB) is taking the following actions, consistent with CCPERB’s duties under the Cultural Property Export and Import Act, to ensure its operations are informed by UNDRIP.
This guide provides instructions for appraisers on the information standards and recommended format for monetary appraisals prepared in support of applications for certification submitted to the Canadian Cultural Property Export Review Board (CCPERB).
This guide provides instructions for appraisers about the information required and recommended format for a monetary appraisal prepared in support of an application for certification submitted to the Canadian Cultural Property Export Review Board (CCPERB).
CCPERB’s authority to certify cultural property and to determine valuation of such property for income tax purposes is set out in the provisions of the Cultural Property Export and Import Act (the Act). The Act requires CCPERB to make valuation determinations based only on fair market value 1. Although professional standards and practices of appraisers for certain types of cultural property may permit the use of various valuation methodologies, CCPERB cannot accept appraisals that use a methodology that estimates a valuation other than fair market value.
Cultural property includes a wide array of material such as natural history specimens, military medals, archival records, decorative and fine art, and other objects of potential outstanding significance. Throughout this guide, the term “object(s)” refers 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. Such an institution or public authority is referred to in this guide as the applicant.
Given the breadth of material that may be eligible for certification, some features of the appraisal format and content may be adjusted based on the cultural property being appraised.
Specify the date of signature of the report.
For completed dispositions: This appraisal estimates the fair market value effective as of [date of disposition], the date that the object was (or objects were) legally transferred to the [name of applicant].
For proposed dispositions: This appraisal estimates the fair market value of the object(s) proposed for disposition and the effective date is the date of this report.
If the appraisal is completed more than one year before the applicant applied for certification or the disposition is finalized, the appraiser will be required to update the appraisal in an addendum addressing any change in the market for the object(s) between the date of the appraisal and the disposition date (for a completed disposition) or the date of the addendum (for a proposed disposition).
This report provides the professional opinion of [name of appraiser] of the fair market value of the object(s) identified below. It has been prepared to accompany an application for certification to the Canadian Cultural Property Export Review Board.
[Name of appraiser] confirms that this report adopts the following definition of fair market value:
The highest price, expressed in terms of money, that a property would bring, in an open and unrestricted market, between a willing buyer and a willing seller who are both knowledgeable, informed, and prudent, and who are acting independently of each other.
When making determinations of fair market value of cultural property, CCPERB applies this definition of “fair market value”. This definition is also applied by the Canada Revenue Agency.
The applicant is required to provide the following documents and information to the appraiser, and the appraisal must include the following confirmation:
[Name of Appraiser] confirms that they have reviewed all of the following documents and information provided to the appraiser by the applicant.
If the appraisal is completed before the appraiser has received all of these documents, an addendum is required once all of the documents have been received by the appraiser. In the addendum the appraiser must acknowledge that the appraiser has now reviewed all of these documents, and indicate whether a change in the estimated value at the date of disposition (for a completed disposition) or date of the addendum (for a proposed disposition) is required due to information contained in all of the documents.
This appraisal is based on a personal inspection of the object(s) that took place on (date) at (location) and accompanied by (name of applicant organization staff person and title, if applicable).
This appraisal is based on digital photographs of the object(s) or a representative selection of digital photographs where appropriate, and the description(s) provided by the applicant.
In the table below, the appraiser must use the description(s) provided by the applicant. It is the responsibility of the applicant to provide the description to the appraiser. The appraiser may copy and paste the description provided by the applicant. For multiple objects, please ensure that the objects are presented in the same order as set out by the applicant. For a large number of objects, use any separate summary table provided by the applicant.
Note that the description must be appropriate to the object(s) being submitted. For example, in the table below the description is for a fine art object. A scientific specimen or archival cultural property will require a description appropriate to the medium and format of the object.
In the table below, provide a thumbnail image for each object, and if the condition or a detail of an object is relevant to the estimation of its fair market value, include a higher quality image as an appendix. If an image is not available, explain why. Add more rows as needed.
For archival cultural property, where records or objects are assigned a fair market value as a group, provide a representative selection of images and a description of the group of material. Applicants may also provide fonds level descriptions for a submission that comprises an integral fonds d’archives or collection. However, if a series, individual object (record) or compilation such as a photo album merits an assignment of fair market value at the item level, then the description must include an item level description that is appropriate to the market most suitable for such an object.
Description of object
Estimated Fair Market Value
- Creator, Maker or Publisher (nationality, dates)
Provide a brief summary (max. 100 words) of the qualifications and expertise of the appraiser with respect to the object(s) being appraised and the market(s) for such object(s).
In summary, based on all available information, it is [name of appraiser]’s professional opinion that the fair market value of the object or the total fair market value of the objects is: $XX,XXX.XX CAN 4 as of the effective date of this report.
For completed dispositions, the appraiser must use the exchange rates published by the Bank of Canada, on the day of disposition. For proposed dispositions, the appraiser must use the Bank of Canada temporary exchange rate corresponding to the date of the appraisal report. In its determination CCPERB will calculate the exchange rate on either the date of the decision (if the disposition has not been completed when CCPERB determines the fair market value) or the date of disposition (if the disposition is completed after the application for certification is made and before the date of CCPERB’s determination).
Indicate the valuation methodology employed, or the combination of methodologies employed, and justify why that methodology or these methodologies are employed.
CCPERB accepts two valuation methodologies: the sales comparison method and the cost method. The cost method should only be used in exceptional cases. What an object cost to be produced or reproduced might not be relevant to what the object would command in an open market. Where an appraiser uses the cost method, the appraiser must provide a reasoned justification as to why the use of that methodology results in a reliable estimate of fair market value.
CCPERB does not accept appraisals that employ the income method, or rely on previous appraisals or previous determinations made by CCPERB.
The appraisal methodology, market evidence, and reasoned justification must be sufficient to enable CCPERB to make a determination of the fair market value of the object(s) as appropriate for the format of the object(s).
For objects where there is a demonstrable market, provide the information below. In the case of archival cultural property or a diverse grouping of objects, indicate whether there is a market for specific items or components within the entirety of the cultural property and provide the following information for those items or components.
As noted in the Preamble to this guide, the term “object(s)” refers 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. The market information cited (e.g. for objects of applied and decorative art, natural history specimens, textual records, photography, and so on) must be appropriate to the object(s).
The appraisal must cite market information and appropriate comparable sales within, but not limited to, five years prior to the Effective Date. Where there is difficulty in identifying recent comparable sales, the appraiser may need to refer to sales that took place over a longer period of time. If you need to rely on sales older than five years, explain why.
CCPERB is aware that finding Canadian market information and comparable sales can be a challenge for certain types of cultural property. However, it is essential that the appraiser base their estimate of fair market value on available market information, supported by a fulsome justification of how that information has been applied to extrapolate the fair market value estimation. Market information should not be conflated with such non-monetary values as historical or research values. Where Canadian market information is not available, the appraiser may refer to the international market for comparable cultural property created by or associated with an individual, company or organization of a similar stature in that market.
Where comparable market data for an entire archival fonds or an entire grouping of diverse objects is not available, appraisers may identify discrete comparables for relevant records or objects within the entirety of the cultural property and, through the reasoned justification (see section 13), extrapolate a proposed fair market value based on the comparables selected. For example, relevant market information for a photograph may be used to extrapolate, through the reasoned justification, a fair market value estimation for a grouping of photographs within the entirety of the cultural property. Archival cultural property or a diverse grouping of objects may also require that specific items or components within the entirety of the cultural property be valued in tiers, making a clear distinction between specific items or components that have market value, and the items or components that have less or no market value.
The tiers may be established based on similar characteristics inherent in the objects (for example, similar media, content, or condition). Aligning specific tiers of objects with specific comparables can contribute to the overall effectiveness of the appraisal’s reasoned justification.
For the sales comparison method:
Complete the table below and add more rows or additional columns as needed.
For archival cultural property or a diverse grouping of objects, indicate what portion of the material or which objects the comparable is applied to.
|Image||Title / Creator (if applicable) / Creation Date||
Vendor / Sale Date
In some cases, an object’s purchase price may be a good indicator for the appraiser’s estimate of fair market value. If the object was (or objects were) purchased by the donor within 10 years of the date of disposition, or for a proposed disposition within 10 years of the date of applying for certification, indicate how the purchase price of the object is (or objects are) taken into account. If the purchase price is not relevant, explain why.
In exceptional cases, CCPERB may require the applicant to provide the appraiser with a Statement of Purchase Price for an object purchased prior to those dates and to take the purchase price into account in estimating fair market value.
In a reasoned justification, explain the rationale for the estimated fair market value. The appraiser must explain why each comparable was selected and identify which comparables provided are most relevant. For archival cultural property or a diverse grouping of objects, indicate what portion of the material or which objects the comparable is applied to, as per the table in section 11.
If the appraiser is using a comparable of a creator other than the creator of the object, include in the reasoned justification why the market for the other creator is an appropriate proxy for a market for the creator of the object.
In exceptional cases where the appraiser’s experience and expertise leads to their conclusion that a potential market does exist, but that market information and comparable sales evidence is unavailable, the reasoned justification must explain how and why other comparables are applied in their analysis. Using archival cultural property as an example, Canadian market evidence may exist but may be confidential or otherwise inaccessible. In these circumstances, the appraiser may judge the Canadian market as most relevant but may decide to rely on an international market for comparable cultural property; a reasoned justification must explain this decision and why the comparable is reliable for the estimate of fair market value.
In the exceptional case in which the appraiser used the cost method for estimating fair market value, the reasoned justification must explain why it is appropriate to include each category of cost in estimating fair market value.
The factors below may be addressed by the appraiser; however, they are not all required, nor is the list exhaustive. The reasoned justification should address factors that are most relevant to the cultural property being appraised.
For a disposition or proposed disposition of a collection/grouping of objects, indicate and explain any adjustments made upward or downward to the individual estimated values and/or the total estimated value for the whole, including when the whole has a fair market value different from the sum of the individual parts. Appraisers who determine that a premium should be applied due to an added value or completeness of the whole must support the amount with market evidence at the time of disposition. Therefore, such premiums, in the absence of market evidence and reasoned justification to support them, will not automatically be considered representative of the fair market value of the whole.
For a disposition or proposed disposition of some types of cultural property, such as archival cultural property or a collection/grouping of objects, the disposition may include accompanying documents that are not an integral part of the cultural property. Documents that are prepared, created, or commissioned by the donor before the disposition (such as finding aids, inventories, databases, or digital copies of analog records within the disposition) should not be included in the material to be appraised for fair market value unless market evidence can be provided to support the impact of these documents on the fair market value of the cultural property. Some recipient institutions may choose to issue a charitable tax receipt for these additional documents, if appropriate.
For a disposition or proposed disposition of multiple similar objects or of a cultural property that includes items, such as photographs or audiovisual material that are appraised individually, indicate whether a blockage 7 discount is appropriate. If a blockage discount is appropriate, explain how the blockage discount was applied. If a blockage discount is not appropriate, explain why, in the circumstances, it is not appropriate.
Any additional information provided by the appraiser that is not required by this guide, such as additional qualifications relating to the appraisal, should be included in an appendix, not in the body of the appraisal.
An appraiser must disclose whether they have any past, present or prospective interest in the appraised object(s), have previously sold the object(s), or have any personal or commercial interest or bias with respect to the applicant or donor(s). Disclosure of such information will not necessarily cause CCPERB to exclude the appraisal. CCERB may require a more detailed explanation of the disclosed information before determining whether to exclude the appraisal from its determination of the fair market value of the object(s).
[Name of Appraiser] hereby certifies that, to the best of their knowledge and belief:
An appraisal must be signed by the appraiser. Digital signatures are accepted.
Return to footnote 1 referrer For the definition of fair market value, see section 3.
Return to footnote 2 referrer Only if purchased by the donor within 10 years of the disposition, or for a proposed disposition within 10 years of the date of applying for certification. In exceptional cases, CCPERB may require the applicant to provide the appraiser(s) a Statement of Purchase Price for an object purchased prior to those dates.
Return to footnote 3 referrer For more detail on what information must be provided to the appraiser in an Archival Assessment Report and Finding Aid or Inventory, please see the “Apply for Certification” section of the CCPERB website.
Return to footnote 4 referrer This amount should include any premium applied to the object(s) as a group or any blockage discount for which a reasoned justification is given in the monetary appraisal.
Return to footnote 5 referrer If fewer than three comparables are provided, include a reasoned justification indicating why only those comparables are cited.
Return to footnote 6 referrer If an appraiser intends to rely exclusively on asking prices to estimate fair market value, the appraiser must summarize the appraiser’s attempts to locate evidence of sales—within, but not limited to, five years prior to the effective date—of comparable objects and provide in the appraiser’s reasoned justification an explanation as to why the asking prices are a reliable indicator of fair market value. Explanations may include the reputation of the vendors offering the comparables for sale and the number of such comparables in the market. Variables such as condition and provenance may have a significant effect on asking prices and must be taken into account. When asking prices are relied upon in estimating fair market value, in absence of a fulsome explanation to the contrary, the asking prices should represent the upper limit for an estimated fair market value. An estimate of less than the asking prices may be a more reliable indicator of fair market value.
Return to footnote 7 referrer A blockage discount is used to determine the fair market value for a disposition of multiple similar objects at the same time. The application of a blockage discount is appropriate when the number of donated objects is large in comparison with the number of objects sold annually in its typical market. For reference see paragraphs 22, 23 and 24 in Canada (Attorney General) v. Nash, 2005 FCA 386.
Return to footnote 8 referrer CCPERB does not have the authority to include, as part of its fair market value determinations under the Cultural Property Export and Import Act, the fair market value of intellectual property rights or other intangible rights.
At the request of applicants dealing primarily with archival cultural property, the Canadian Cultural Property Export Review Board (CCPERB) contracted the services of an accredited monetary appraiser to draft general guidance on the considerations and best practices that contribute to the effective monetary appraisal of archival cultural property.
The following information resources were prepared by Kelly Juhasz, the principal of Fine Art Appraisal + Services, an art advisory and appraisal consultancy. She is an Accredited Member of the International Society of Appraisers and past president of the Canadian Chapter, and holds a Master of Information Studies, Archives, from the University of Toronto.
The final draft of these information resources was reviewed and amended by CCPERB, and may be read in conjunction with CCPERB’s Guide for Monetary Appraisals. The considerations and best practices described here are not necessarily limited to applications dealing with archival cultural property; CCPERB encourages all applicants and monetary appraisers to refer to this information to support the preparation of effective monetary appraisals in the context of applications for the certification of cultural property.
A companion to CCPERB’s Guide for Monetary Appraisals, the purpose of these strategies with respect to applications for certification of archival cultural property is to:
The appraisal report required as part of the application for the certification of archival cultural property only has one use – to estimate the fair market value of the cultural property represented in the application. Not only does the appraisal report state a specific numerical amount as the fair market value but it also states to whom the report is intended. The appraisal report is not to be used for any other purpose including being used as evidence in the submission of future cultural property applications. It is a one-time use report only and is valid for one specific date – the date of disposition or, for a proposed disposition, the effective date of the report at the time of the application for certification.
In order to estimate fair market value, the cultural property is hypothetically placed into a sales situation as defined within the context of a real marketplace. This may be based on various classifications of market sales and the associated monetary value characteristics of the cultural property.
Although there may be a market for individual objects or classes of objects contained in an archival fonds or collection, estimating the fair market value is not always easy when dealing with archival cultural property. In most circumstances, the sales of archival fonds are not public and the realized prices for the sales of fonds are not easily available. Furthermore, archival fonds are rarely publicly listed for sale on an open market where asking prices are supplied and any and all institutions and other potential buyers have equal and adequate time to express interest in purchasing.
These strategies are designed for archivists, librarians and appraisers, with a focus on productive actions and strategies that support the creation of a justified estimate of fair market value in monetary appraisal reports for archival cultural property.
Barth, Jannette M. (October 25, 2016). Methodology for Calculating Blockage Discounts – Consultation Document Prepared for the Canadian Cultural Property Export Review Board. Pepacton Institute LLC, NY.
Canadian Cultural Property Export Review Board. (December 2020). Communication to Archival Stakeholders – Guide for Monetary Appraisals.
Canadian Cultural Property Export Review Board. (February 2022). Guide for Monetary Appraisals.
Heritage Auctions, Auction Archives, Dallas, Texas (ha.com)
International Society of Appraisers. (2021). Core Course in Appraisal Studies Manual. Edited by Meredith Meuwly. International Society of Appraisers, Chicago, IL.
Maloney, David J. (January 2020). Appraising Personal Property: Principles & Methodology, 9th Edition. Appraisers Press, Frederick, MD.
The Appraisal Foundation. (2020) Uniform Standards of Professional Appraisal Practice 2020-2021 Edition. USA.
The best market is the most common or most relevant market where the cultural property would be sold. As there are multiple markets and levels of markets, appraisers must look to where similar or comparable property is traded on a regular basis whereby the number of transactions indicate an active market.
For archival cultural property, the markets have changed over the years. Most significantly, the once robust institutional market in Canada has almost disappeared as budgets for acquisitions have substantially diminished. Institutional collections are expanded by way of donations. Whereas there are still purchases of archival cultural property by institutions, these sales are increasingly rare and the sales records are not accessible to most appraisers and institutions.
Because of the depressed sales activities from institutional buyers, it is imperative to look elsewhere. One potential approach is to look at niche markets or a segmented market of single or small groupings of archival documentary records more commonly traded within specialty dealers and auction houses. Not only is this a more open and unrestricted market, but it is also one that allows for the justification of an opinion of fair market value using actual market data.
This segmented market approach offers an opportunity to estimate the fair market value of the archival fonds by dividing the fonds into categories of similar records and then presenting the sum of all the categories as the final value. It is important to remember that the institution is supplying the justification of the cultural property’s outstanding significance that will define and describe the archival fonds as a whole and therefore, it is not necessary for the appraiser to do the same. The appraiser must look at how the markets treat similar records and the report must reflect how the market operates.
Archival cultural property records do have established open markets with willing buyers and sellers. In using a segmented market approach, the best indication of fair market value lies in how the individual records found within the fonds would perform in the marketplace. This approach allows for a different way of seeing the fonds or collection.
The appraiser’s opinion of fair market value is contingent upon the results of their research conducted within the best market. The decisions made on where to look and what to look for will determine the credibility and the reasonability of the value conclusion.
In estimating fair market value, it is the sales comparison approach that is, more often than not, the most applicable to archival cultural property and that will satisfy the definition of fair market value.
When collecting market data, there are numerous sources from which to gather relevant information. These include publicly listed past sales or current list prices from auction houses; specialty dealers or specialized databases; media articles about similar archival cultural property or donations; market reports and newsletters from associations, auction houses, dealers or collectors; price guides; auction or dealer catalogues; and from discussions with auction specialists and specialty dealers about the subject archival property. The number of sources for market data continues to grow as more online auctions and sales platforms enter the market. Look for reputable sales outlets that provide proper description details in their listings.
With archival cultural property, searching for market data can take multiple directions. Start with the creator (or creators, if the archival cultural property has multiple sources) and look at their market status. Ascertain how active they are and in which sectors of the market related materials trade. For example, an author might be active in more than one market sector other than books such as film and television, podcasts or blogs, NFTs, performing arts or audiobooks.
An example that illustrates how to think differently about archival materials in relation to the market is outlined below.
The posthumous pardon document,1 the Grant of Free Pardon from the Queen, Canada and Government of Nova Scotia to Viola Irene Davis Desmond issued in 2010 was the first of its kind to be granted in Canada and was presented to the family of Viola Desmond as an apology for prosecuting her for tax evasion in 1946. The pardon issued 64 years after she was arrested for sitting in the whites-only section of a movie theatre in New Glasgow, N.S. acknowledged that she was rightfully resisting racial discrimination. The Royal Prerogative of Mercy recognizes that the conviction was in error. In addition, Viola Desmond became the first non-royal Canadian woman to appear alone on the front of a Canadian banknote issued in 2018 on a $10 bill.
There are no other comparable sales to be found of Canadian posthumous pardons as this was the first. Documents of this historic significance in Canada are not usually placed for sale in the markets. However, there are parallel documents and commemorative objects that could be used as comparables whereby the value of the document can be extrapolated and justified.
When looking for similar objects, there are a number of places to start: the person, Viola Desmond; the document, an official pardon; the subject, human rights and discrimination; and objects related to other past historical events or prominent people. Using this document as an example, the markets can be searched for other objects related to Canadian heroes and persons of national historic significance including but not limited to Edith Archibald (one of Halifax’s leading suffragettes), Mary E. Bibb (involved in the Underground Railroad and considered Canada’s first black journalist), Dorothy Dworkin (nurse and planner of the first Jewish hospital), Nellie McClung and The Famous Five (an author, social activist, politician and suffragette who launched the Persons Case to allow women to sit in the Senate) and Terry Fox (a Canadian athlete and cancer research activist). In addition, objects related to politicians and civil rights activists can also be searched that include Beverley McLachlin, Adrienne Clarkson, Martin Luther King, Jr., Rosa Parks or Ruth Bader Ginsberg. Other Canadian and American documents having been sold in the marketplace can be researched including originals and copies of important constitutional acts and other official pardons signed by Queen Elizabeth II and appeal documents related to human rights or other legal matters.
Thinking more broadly about what other kinds of documents or related objects that might be found in the marketplace may lead the appraiser in a direction whereby an argument can be made using these other sales results when the exact or similar document cannot be found to estimate fair market value. The appraiser often needs to have a different way of seeing the collection than the creator(s), donor and/or institution.
With certain property, the geographic location of the market and related sales activities may be a factor. Given today’s online marketplace exposure, this is less and less important as sales are more easily made internationally. However, the nature of the archival cultural property and the individual characteristics of the records will determine if geographic location of the marketplace is relevant. For Canadian cultural property, the comparable sale does not need to have occurred in Canada.
In the appraisal report, the appraiser must account for changes in the marketplace. If when analysing the market, there are upwards or downwards trends affecting the creator, historical event or the individual comparable sales, explain to the reader why that might be happening and how it might be relevant to the subject fonds or records. There may be other market factors having a significant effect on markets and prices. Examples of this are the 2008 economic crash and the Covid-19 pandemic.
The monetary valuation of archival cultural property involves all the records in the fonds or accrual, though some records may or may not have a hypothetical buyer in the market but are still integral to the fonds. The appraiser must be able to determine which of the records have market value and base their estimation of fair market value upon relevant market characteristics.
There is no standard pricing for fonds and there is no standard number of records that constitute a fonds. Most often neither the sales results of complete fonds are made public nor are the fonds records properly described in the sales listings. Assessing and comparing fonds to fonds without accurate data is difficult and requires multiple assumptions to be made in the analysis which may or may not result in an accurate assessment.
One approach is to divide the fonds records into groupings of like-objects such as photographs, ephemera, correspondence or by medium ¬– whatever record characteristics apply to the subject archival property. Although different from the rules of archival description, approaching the fonds in this segmented manner for monetary appraisals allows for a detailed examination of similar records and their unique value characteristics. This approach provides an opportunity for a more accurate assessment of market performance when comparable sales for complete fonds are not available. This approach also makes the appraisal process of archival fonds more manageable and helps narrow down the search for comparable sales evidence.
It is common for archival fonds to contain hundreds if not thousands of records. The appraiser must be able to rely upon the finding aid or inventory lists to provide all necessary descriptive details. Problems arise when these reference documents lack enough unique details pertaining to individual records when comparing them to how similar records would be described for sale in the market. Another issue in the appraisal process is the inability to search or sort these documents. Having this ability allows the appraiser to easily group similar records together, see the relationships between the records and isolate the individual value characteristics. Having the ability to sort and group the finding aid or inventory list ensures that all records can be counted. In addition, the appraiser can insert additional columns for their own notes or add descriptive details directly relating to individual value characteristics pertaining to the various groups for the sole purpose of conducting the monetary appraisal.
Relying on the finding aid’s series or subseries descriptions as categories for valuation or use the measurement system can be problematic. Assigning a value to 230 centimetres or 13 metres of textual records is not how similar materials are sold on the market and therefore, it is not recommended to appraise them using this same system. It is important to obtain or accurately estimate the number of records in the fonds.
The inspection process is time consuming and one that requires much collaboration and the sharing of information between the appraiser and the archivist. In order to determine what records to physically examine, the appraiser may need to generate a random sampling of the archive. Due to the size of the archives and the time allocated to conduct the appraisal, it is not likely feasible to physically inspect each record.
Using a recognized sampling methodology to select the types and proper number of records to examine, the appraiser can then use the results of the sample and apply them to all of the records. The appraiser creates a number of assumptions, for example, on condition, number and/or category of records per file, and is able to apply the findings from the inspection of the sampling across the entire fonds. Having a finding aid that can be shaped for the appraisal process will allow for a more statically-accurate assessment of the fonds and ensure the inspection results of the sample are sound and applicable to all the records.
The segmented approach is further reflected within the appraisal report whereby summaries of groupings and inspection results can be explained and where both inspection assumptions and facts pertaining to unique value characteristics can be presented to help justify the concluding opinion of the fair market value.
Each appraisal is unique to each archival fonds and estimating fair market value is dependent on various value characteristics. The records within a fonds may fall into the following market categories: memorabilia, antiquarian books and manuscripts, fine art, photography, ephemera, books, film, and personal and business correspondence. Key individual value characteristics of the materials being appraised will assist in identifying appropriate potential buyers and realized prices.
The appraiser may have to account for the various value characteristics that apply to each of the categories of objects that include, but are not limited to, rareness, condition, medium, attribution, multiples (edition), age, originality (i.e., manuscript versus a typescript, sketch versus painting, signed versus unsigned), freshness to market (having never been seen or sold before in the market), and many others tied to the uniqueness of each category.
Related to provenance and authenticity, a value characteristic to look at is the market prevalence of the creator, the general subject area, or how the records are related to a historical event. This is known as the celebrity effect whereby a fonds associated with a more recognized creator will attract more attention than one associated with a lesser-known creator. For example, in comparing two similar letters between a creator and their peer, the letter written by a more recognized creator will command a higher value than the letter written by a lesser-known creator. As well, a letter written to the recognized peer would have more market value than one written to a lesser-known peer.
To estimate fair market value, the sole focus is on the marketplace and how similar archival records would perform in the marketplace. Here’s a market example using one of Margaret Atwood’s books presented for sale in two different auctions:
Two first edition copies of Margaret Atwood’s The Handmaid’s Tale appear at auction on separate dates in the same year (Margaret Atwood. The Handmaid's Tale. Boston: Houghton Mifflin, 1986. First American edition).2 The first is in the publisher’s original binding and dusk jacket and in near fine condition. The second is a presentation copy inscribed on the half-title: “For Edgar Doctorow/with thanks!/Margaret Atwood/1986” and is in near fine condition. This copy also has a promotional postcard laid-in. The auction description implies that the note of thanks from Atwood is likely for the positive statement that appears on the rear jacket panel where Doctorow compares The Handmaid’s Tale to George Orwell’s 1984.
The first sells for $88 CAD whereas the second book sells for $1,960 CAD only four months later. Looking further into the second auction, there was a limited first edition autographed book by E.L. Doctorow called Ragtime (New York: Random House, 1975) that sold for $217 CAD. Two years later, the same book sold along with a portfolio of etchings called The Ragtime Etchings (Carol Yeh. The Ragtime Etchings, 1978, Portfolio #3 of 4, signed by Yeh) sold for $319 CAD.3
This example shows the difference in selling prices for the same mass-produced books. The celebrity effect is clearly on display with the Atwood books as the difference between the two sales is substantial due to the personal and market importance of the association between two well-regarded and collected writers acknowledging the assistance one provided the other in the marketing of the book. The Doctorow books also show interest from the market however with the addition of the etchings, the price doesn’t increase that much as the artist, Yeh, doesn’t have a large presence. It is these subtleties that matter in the appraisal process as they affect the selection of comparable sales and directly inform the opinion of fair market value.
The same logic applies to records pertaining to a prominent historical event. How historically significant or how publicly memorable is the event? Ask the question, “How important or recognized is the creator, the subject or the event?” and then determine how the answer reflects upon the records. Follow up on the individual records and determine if they hold an intrinsic use (what are the records and are they commonly used for a specific purpose outside of their association with a celebrity/historical event) and/or if they would be considered rare (one-of-a-kind, annotated, signed, inscribed, hand-written, etc.). Go further to assess their condition and demand in the marketplace.
To support the estimation of fair market value, comparable market data should be supplied from the market identified as the best market. This market data consists of similar objects having sold in the marketplace as close to and prior to the effective date of the valuation. This can be within, but not limited to, the last five years or shortly after the effective date depending on the objects and market conditions.
Realized sales results (also referred to as the selling prices or achieved sales) provide solid evidence that a market exists and that there is a strong probability that buyers will continue their market activity at a similar pace and trajectory on and for a reasonable timeframe after the date of the realized sales.
In the selection of comparable sales data, check to make sure that the sale occurred in an open and unrestricted market and/or make sure you select additional comparable sales to support the appraised property and explain why the private sale is relevant.
For example, if an archival fonds was only offered and sold to one potential institutional buyer, the opportunity to purchase the fonds was not offered to more than one potential buyer and that potential buyer was limited to one institution. Although, this doesn’t imply that private sales of archival fonds are not allowed or encouraged, it means that the resulting sale may not have occurred in an open and unrestricted market. Using this sale as the only market comparable is not enough to justify the appraiser’s opinion of fair market value. The evidence provided from one private sale does not mean that the same or similar property would sell for that price if offered to more than one potential buyer or that another potential buyer who is not an institution and who was offered the opportunity to purchase would pay the same amount. Additional evidence of market sales must be found to create an opinion of fair market value.
When there are no comparable sales for an entire archival fonds, which often can be the case, the fonds should be assessed to identify categories of records that may have a market. Past comparable market data for individual archival records may be found searching the following categories in the marketplace: old and rare books, memorabilia, photographs, fine art, ephemera, manuscripts, autographs, popular culture, collectibles, travel and exploration, cartography and antiques. Typical listings will be for single or small lots of archival documentary records.
If looking for comparable sales from the auction market, archival records can be found at the reputable auction houses with specialized sales in the categories list above. Using auction results or current online listings where asking prices are shown ensures the definition of fair market value is met as the opportunity to purchase was accessible to all and any potential buyer, and the sales results are open to the public. In working with specialty dealers, who to contact will depend on the category of records in the fonds. Look for businesses who are members of reputable associations.
Collect as many relevant and related comparable sales as possible. These will be filtered down as the analysis moves forward and the narrowed selection goes deeper into the unique characteristics of individual records within the fonds.
Check the date of the comparables against the effective date of the valuation. If significant time has passed but the comparable is relevant, state why it was selected to help estimate the fair market value and if that same sale would occur on the effective date, how might it differ.
Often in the Canadian market, categories of individual archival-based records by Canadian creators may not be found. Rarely have Canadian creators placed individual records up for sale. The results have left a gap in the marketplace. In this case, it would be appropriate to use parallel comparables that are sufficiently similar to allow for a comparison using the associated value characteristics.
To be a parallel creator or be identified as parallel archival property, the creator or record must be similar in all aspects. If the creator is a writer, then a parallel creator would be another writer active at the same time, writing in the same genre, have a similar degree of reputation and marketability, sell their books at a similar price point or be similarly active in the same markets. For a record to be parallel, it must have the same intrinsic use, share similar or same physical characteristics, be created around the same time and be sold within the same market.
An example of parallel creators would be two politicians elected at the same time at the same level of government, holding office for differing or the same parties or one who preceded or succeeded the other. An example of a parallel record could be the business documents of two solo musicians producing the same genre of music and sharing the same market and fan base at the same time.
In some circumstances, dealer asking prices can be used; however, the appraiser must first summarize the attempt to locate evidence of sales. These asking prices would reflect the highest prices for these objects in the market. The appraiser must be aware of activity in the marketplace. Also, they must know if the asking prices supplied by dealers do, in fact, indicate current market value and that they are not inflated or deflated thus adding bias in favour or against the accurate market price. Remember that appraisers are to provide arms-length, justified and unbiased opinions of value.
When appraising cultural property, finding the exact same record having sold just prior to the effective date of valuation is almost impossible. After finding your comparable sales data, in order to estimate the fair market value, adjustments may need to be made to account for the differences between the comparable sales and the records being appraised. There are a few reasons why adjustments would be necessary, including:
Monetary value characteristics
These may include a variety of characteristics relevant to individual records such as rareness, condition, medium, multiples or quantity, age and originality (i.e., manuscript versus a typescript, sketch versus painting, signed versus unsigned).
Overall fonds characteristics
These may include the “celebrity effect” based on the creator or historical significance associated with the fonds and/or individual records.
It is up to the appraiser to account for differences between the comparable sales examples and the subject archival records and to make necessary adjustments to value based on the differences. The explanation of the comparable sales and any associated adjustments becomes part of the appraiser’s reasoned justification of their opinion of the fair market value.
When estimating fair market value of groups of objects, such as limited-edition prints, photographs or archival cultural property, an adjustment to the sum of the monetary valuation might be appropriate. This adjustment is to reflect the depressive effect of the availability of a large number of similar objects or records hypothetically placed onto the market as of the effective date.
Within the monetary appraisal discipline, these adjustments are referred to as “market discounts”. There are various market discounts that may apply in the estimation of fair market value of archival cultural property including, but not limited to, blockage discounts, volume discounts and institutional discounts.
A blockage discount is tied to market supply and demand of property. When a large number of similar objects are offered for sale in an open and unrestricted market, supply may overtake demand thus depressing the value of the individual object. The market can only absorb so much of any given object before it becomes saturated and the demand is reduced. The blockage discount accounts for large quantities of similar objects needing to be valued as of one date that normally would be sold over time. The approach is based on the assumption that the large quantity may be viewed as a business inventory that produces an income stream that must be discounted to the present value based on that one date.4 Moreover, this is applied after conducting a market analysis determining how often or how many similar objects actually sell in a year and then applying that analysis to the number of records in the archive.
A volume discount is an economic incentive to encourage buyers to purchase objects in multiple units or in large quantities. This incentive pricing strategy is most often seen in the wholesale market. For cultural property, this discount may be applicable when looking at donations whereby a dealer sold an assembled collection of prints or archival records as a portfolio or collection or sold multiple prints or archival records directly to a donor at reduced individual prices. It also applies to the price when an artist sells work directly to a dealer for the purpose of resale. The results are prices that are lower than what the prints or archival records may have sold for individually on the market. In estimating fair market value of archival cultural property or a collection of photographs or prints, a volume discount may need to be applied to consider the depressive effect of incentive pricing in the hypothetical market.
An institutional discount is also an incentive-based pricing strategy from sellers (dealers or creators) to institutional buyers. The acquisition costs of archival cultural property is high but so is the benefit to the creator or donor to be acknowledged within the institution. The seller may offer a discount on the asking price to benefit both the institutional buyer and the seller to enable the purchase. This discount is not directly related to the property being offered nor is it one that the appraiser would apply in estimating fair market value. But in using a comparable sale whereby an institutional discount has been applied, the discount must be included in the price used to help estimate fair market value.
In relation to archival cultural property and the estimation of fair market value, a market discount may need to be applied to the fonds as a whole or only to some of the records depending on the resulting sales in the selected market. In large collections of photographs or limited-edition prints, a market discount may need to be applied to the entire donation to reflect how multiples would perform on the market. Deciding whether or not a market discount is appropriate, the appraiser will turn to their market research and analysis.
The appraisal report and final opinion of fair market value must be credible and reasonable. To achieve this, the value conclusion must be supported by reliable market data. The appraiser must present a reasoned justification that clearly explains how and why they reached the numeric value they did. This explanation of how the market data relates to the archival cultural property is often missing and is one of the most common flaws in appraisal reports being submitted as part of cultural property applications.
The reasoned justification is the appraiser’s opportunity to reconcile their research and market analysis and present the basis on which their valuation is formed. This is not to be confused with the outstanding cultural significance of the fonds or the appraiser’s years of experience in working with similar property. But instead, an appraisal’s reasoned justification must explain how the archival fonds and records meet the criterion set out in the definition of fair market value.
In order for CCPERB to certify the archival property, they must be able to provide a written decision that is transparent and intelligible. To do so, they must rely upon the information submitted in the appraisal report which becomes the basis for their decision. Their decision must be fair, rational, logical and justifiable, which in turn means so does the information presented in the appraisal report.
The reasoned justification cannot be associated with prior appraisals, prior CCPERB determined fair market values or the potential historical research benefits afforded to the receiving institution. It must reference market evidence and address factors that are unique to the cultural property as a means of extrapolating fair market value.
No archival fonds is the same. Each has a variety of individual objects and records that together create the completeness of the fonds. In approaching the valuation of the fonds using a segmented market approach whereby categories of similar objects are grouped together, the appraiser can comment more directly on how these categories of objects perform in the marketplace making the value conclusion more reliable. It also assists the appraiser in maintaining their impartial and objective position and ensures accuracy in their value opinions by sticking to the facts.
If using a segmented-market approach, the reasoned justification occurs throughout the appraisal report by grouping of records. Each grouping is an opportunity to explain why these particular records were grouped together and how they have performed or are currently performing in the market. Explain why the particular comparable sales were selected and how each comparable informs the opinion of value on the subject grouping of records. This level of explanation allows the reader to more fully understand the nature of the objects and the market in which they trade. Along with images, detailed descriptions, accurate sales data and accounting for relevant value characteristics, the reader can more easily see the logic applied in ascertaining the estimate of fair market value.
Appraisal reports are business documents making up part of the application for certification of cultural property. They should be prepared to meet standard business practices and to best represent the interests of both the institution and the donor.
Reports should be complete and easy for the institution, donor and CCPERB to review. For archival cultural property, finding aids and inventory lists make up part of that report and sometimes these documents are difficult to edit. Work with the institution to see if they have documentation that can be edited or reformatted to a different file format, and if not, create a breakdown to include in the appraisal report.
Clearly identify the market evidence and how the evidence supports the fair market value conclusion. Provide a summary chart with all the estimated values thus making it easier to see how the values add up through the appraisal process.
Document the list of resources used to assist in the creation of the appraisal. Include a bibliography and footnotes, and appendices for the finding aid or inventory lists. Illustrate the report with images from the inspection and of the comparable sales objects. Include market standard descriptive elements for objects and report-writing standards such a table of contents. Make it easy for the reader to assess the credibility of the report and the reasonableness of the value conclusions.
An efficient way to ensure that all necessary information is included in the appraisal report is to refer to the CCPERB Guidelines and follow their suggested format. All appraisal reports must include the date the report was created, the effective date or date of disposition, the intended use and users, the appraiser’s qualifications, the appraiser’s attestation and the appraiser’s signature.
Return to footnote 1 referrer The Official Pardon was part of the exhibition Viola Desmond: A Noteworthy Woman held at the Bank of Canada Museum in 2018 and is used in this example with permission of the descendants of Viola Desmond, the Robson family.
Return to footnote 2 referrer Heritage Auctions 2014 June 19 Weekly Internet Rare Books and Autographs Auction #201425, Lot #92028, and Heritage Auctions 2014 October 8 Rare Books Signature Auction – Beverly Hill #6112, Lot #45452.
Return to footnote 3 referrer Heritage Auctions 2014 October 8 Rare Books Signature Auction – Beverly Hills #6112, Lot #91013 and Heritage Auctions 2016 April 6 Rare Books Signature Auction – New York #6155, Lot #45772.
Return to footnote 4 referrer Barth, Jannette M. (October 25, 2016). Methodology for Calculating Blockage Discounts – Consultation Document Prepared for the Canadian Cultural Property Export Review Board. Pepacton Institute LLC, NY
In this document the Canadian Cultural Property Export Review Board (CCPERB) responds to submissions made by the archival community to CCPERB’s draft Guide for Monetary Appraisals dated July 31, 2020, and circulated to the stakeholder community during the summer and fall of 2020.
It was evident to CCPERB that the submissions of the professionals and institutions who commented on the draft guide reflected extensive experience with applications for certification and for monetary appraisals. CCPERB carefully considered each submission and each recommendation contained therein. CCPERB discussed those submissions and recommendations at length and, where possible, CCPERB amended the draft guide taking into account the submissions and recommendations. CCPERB approved and adopted the revised guide at its meeting on November 10, 2020. The November 2020 guide should be consulted by applicants and appraisers going forward.
There were a number of recommendations that were common among the submissions made by the archival community that CCPERB was unable to integrate due to restrictions and limitations imposed upon CCPERB by the provisions of the Cultural Property Export and Import Act (the Act)1, jurisprudence binding on CCPERB, and requirements of administrative law. In order to explain why CCPERB cannot accept those recommendations, this document will first contextualize the rationale for CCPERB’s review of its policies and procedures relating to monetary appraisals, then review the statutory scheme of the Act that governs the certification of cultural property, and summarize the relevant requirements of administrative law. The document will conclude with a summary of the principal recommendations of the archival community, identify the recommendations that CCPERB cannot accept, and explain why with reference to statutory provisions, jurisprudence and requirements of administrative law.
In 2019, Parliament responded to a Federal Court decision by amending subsection 32(1) of the Act and the corresponding provisions of the Income Tax Act2 concerning CCPERB’s jurisdiction to certify cultural property. These legislative changes, among other reasons, caused CCPERB to review its policies and practices relating to the certification of cultural property.
The creation of the Guide for Monetary Appraisals is part of CCPERB’s comprehensive review and renewal of its policies and practices relating both to the certification of cultural property and to the review of applications for export permits. The changes to these policies and practices introduced in the Guide for Monetary Appraisals are not solely administrative, but are also intended to address specific recurring issues that CCPERB encountered in making determinations of fair market value in the context of applications for certification of certain types of cultural property including archival fonds.
As noted throughout this document, in applications for certification of cultural property CCPERB cannot apply one valuation methodology for one type of cultural property, and a different valuation methodology for another type of cultural property, particularly where the valuation methodology is incompatible with the statutory structure of the Act.
Subsections 32(1) of the Act provides CCPERB with jurisdiction to certify cultural property. Subsection 32 (1) provides as follows:
For the purposes of subparagraph 39(1)(a)(i.1), paragraph 110.1(1)(c), the definition total cultural gifts in subsection 118.1(1) and subsection 118.1(10) of the Income Tax Act, where a person disposes of or proposes to dispose of an object to an institution or a public authority designated under subsection (2), the person, institution or public authority may request, by notice in writing given to the Review Board, a determination by the Review Board as to whether the object meets the criterion set out in paragraph 29(3)(b) and a determination by the Review Board of the fair market value of the object.
Paragraph 29 (3)(b) of the Act refers to the criteria of outstanding significance set out in paragraph 11(1)(b) of the Act. Pursuant to these statutory provisions, CCPERB has jurisdiction to consider an application for certification of an object if an institution or public authority designated by the Minister of Canadian Heritage requests a determination of whether the object meets the requirements of outstanding significance and a person has disposed of or proposes to dispose of the object to such an institution or authority.
If CCPERB determines that the cultural property meets the requirements of outstanding significance, it then determines the property’s fair market value. In view of subsection 33(1) of the Act, after CCPERB has determined the fair market value and the property has been irrevocably disposed of to a designated institution or public authority, CCPERB is required to issue to the donor of the property a cultural property income tax certificate attesting to the fact that the object meets the requirements of outstanding significance set out in the Act and attesting to the object’s fair market value. The certificate must be in such a form as the Minister of National Revenue may specify.
Parliament constrained CCPERB’s jurisdiction to certify cultural property by the wording of the provisions of the Act. In establishing the value of cultural property to be set out on a cultural property income tax certificate, CCPERB must determine the property’s fair market value. The Act does not permit the Review Board to determine any value other than fair market value.
Parliament used the term “object” in subsection 32(1) to refer to all types of cultural property that may be certified by CCPERB. Parliament did not provide special provisions or exceptions from the requirements of the Act for the valuation of different types of cultural property. The Act therefore requires that CCPERB make valuation determinations based on fair market value for all types of cultural property, whether the property be, e.g., archival fonds, fine art, decorative art, insects, meteorites, or military artefacts. If Parliament had desired that CCPERB could make different valuation determinations for different types of cultural property, it would have expressly so provided in the wording of the Act.
In making decisions required by the Act, CCPERB is bound by the requirements of administrative law. Administrative law is not static. It has evolved through the jurisprudence over many years. Since the Act was enacted in 1977 there have been many court decisions that have refined, and in a number of instances changed, those requirements. One of the most significant developments in administrative law is the recent decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov (Vavilov)3.
One of the requirements of administrative law is the duty of fairness. The duty of fairness includes procedural fairness. In circumstances in which an administrative tribunal is required to provide written reasons for a decision, the reasons must explain how and why it made the decision and must provide justification for the decision in a transparent and intelligible manner4.
Subsection 33.1(1) of the Act provides that a person, who has disposed of an object that CCPERB has certified and in respect of which it has made a redetermination decision of fair market value, is entitled to appeal that decision to the Tax Court of Canada. Accordingly, CCPERB is required by administrative law to provide written reasons for its redetermination decisions. CCPERB’s written reasons must justify the decision being made, explaining how and why CCPERB made the decision.
To enable CCPERB to provide adequate written reasons for a redetermination decision, it must have adequate market evidence in the appraisal(s) furnished in support of the cultural property that is the subject of the decision. This market information is required to enable CCPERB to justify its decision in its written reasons.
As an administrative tribunal, CCPERB can only act within the scope of the jurisdiction delegated to it by the Act. The Guide for Monetary Appraisals will help to support decision-making that is procedurally fair, rational, logical and justifiable within CCPERB’s jurisdiction and the facts relating to each application for certification.
In recent years, CCPERB has become increasingly concerned about accepting appraisals that are based primarily or exclusively on a methodology of relying on previous appraisals of cultural property submitted for certification under the Act or previous fair market value determinations made by CCPERB under the Act. Such appraisals have been furnished in support of applications for certification of fine art, archival fonds, and other types of cultural property. CCPERB has been rejecting appraisals based on previous appraisals or previous determinations for other types of cultural property, but reluctantly continued to accept such appraisals for archival cultural property.
Recognizing the need for consistency in the treatment of appraisals of all types of cultural property, commencing in the fall of 2019 and continuing through the fall of 2020, CCPERB engaged in discussions with national and international organizations to gain insight into practices relating to the valuation of archival cultural property. This included meetings with representatives of Library and Archives Canada, the Canadian Council of Archives (CCA), and the National Archival Appraisal Board (NAAB). CCPERB also consulted with Arts Council England, The National Archives (UK), the National Library of Australia, the Australia Department of Communication and the Arts, the United States Internal Revenue Service, the Harry Ransom Center, and the Antiquarian Booksellers of America. Concurrently, CCPERB began to revise its existing guidelines for monetary appraisals. In revising its guidelines, CCPERB sought to make the application process as efficient, easy and fair as possible and to ensure that CCPERB would be able to make decisions in accordance with the requirements of the Act and administrative law. Above all, CCPERB sought to ensure that all types of cultural property of outstanding significance is certified under the Act to the extent that the law would permit.
At its meeting in December 2019, CCPERB decided to place on hold applications for certification of cultural property supported by appraisals based on a valuation methodology that relied primarily on prior appraisals, on prior CCPERB fair market valuation determinations, or on historical research value, pending finalization of the revisions to its guidelines for monetary appraisal. In December 2019, CCPERB posted a draft of its Guide for Monetary Appraisals on its website and commenced a process of consulting on the draft guide with applicants and other stakeholders.
From February to April 2020, CCPERB solicited comments on its draft guide from approximately 20 Canadian specialists active in the field of cultural property appraisal, including rare book dealers, members of the Canadian Chapter of the International Society of Appraisers, members of the Art Dealers Association of Canada Appraisal Committee, and independent appraisers. In addition, it scheduled an in-person meeting with NAAB at the end of March 2020 to discuss the draft guide and to explain the rationale for the changes in practice that the guide contemplated. Unfortunately, due to the COVID-19 pandemic, that meeting was cancelled.
In order to advance matters, in June and July CCPERB revised its draft Guide for Monetary Appraisals based on the input that it had received by that time, and circulated the revised draft, dated July 31, 2020, to archival organizations and stakeholders, and to any other organization or individual who requested a copy of the July 2020 draft. In addition, CCPERB solicited input and comment from those stakeholders who had provided comments on the December 2019 draft, from applicants whose applications for certification had been placed on hold pending finalization of the guide, and from associations and other stakeholders that represented archival institutions, archivists, and appraisers of archival fonds. In August 2020, NAAB also shared the revised draft guide on a listserv that reached the archival community more broadly and conducted a survey on the content of the revised draft guide.
In September through early November 2020, as well as receiving NAAB’s survey results and NAAB’s submissions and recommendations, CCPERB received comments from individuals, institutions and other organizations including the Canadian Association of Research Libraries, the Association of Canadian Archivists (ACA), Bibliothèque et Archives nationales du Québec, the Canadian Historical Association, the University of Toronto, the Art Gallery of Ontario, the Council of Provincial and Territorial Archivists, the Canadian Council of Archives (CCA), the current and a former Librarian and Archivist of Canada, as well as other individual archivists and appraisers. In addition, and upon request, CCPERB and its Secretariat also convened meetings with representatives of NAAB, CCA, ACA, the University of Toronto, and Queen’s University in order to receive direct feedback.
As indicated above, CCPERB carefully reviewed all comments and recommendations received. At its meeting on November 10, 2020, CCPERB finalized and approved the Guide for Monetary Appraisals.
CCPERB acknowledges the thoughtful and constructive comments received throughout the consultation. The feedback reflected a depth of expertise and experience across a number of disciplines, in particular from those individuals and organizations specializing in archival cultural property.
CCPERB received a number of comments and recommendations that were common among the submissions from the archival community. These are summarized below. In addition, CCPERB explains why it is unable to accept and implement a number of these comments and recommendations. The italicized passages are quotations from comments and recommendations received from the archival community.
The guide is heavily predisposed to single or smaller objects such as fine art objects and artefacts.
CCPERB has taken this view into consideration in the current version of the guide, and made revisions intended to clarify the guide’s applicability to all forms of cultural property. CCPERB’s determinations of the fair market value of certified cultural property are not founded on policies set out in the guide itself, but rather are founded on the provisions of the Act. As noted above, the guide reflects the statutory language of the Act, which 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.
The objective of the guide is the same for individual objects such as a tapestry, or for diverse groupings of objects such as an archival fonds: the guide outlines specific approaches and general strategies to ensure applicants cite market data and provide a reasoned justification upon which CCPERB can make a determination of fair market value, as required under the Act. The difficulty to appraise unique forms of cultural property does not absolve CCPERB of the Act’s requirement that the Board make a fair market value determination for certified cultural property.
Neither the concept of ‘fair market value’ nor how to establish it are defined in the legislation or in regulation.
Although the term “fair market value” is not defined in the Act, there is an established body of jurisprudence that has considered the meaning of fair market value both in the context of the Act and other legislation. This body of jurisprudence has its origins in the decision of the Federal Court in Henderson Estate v. Canada (Minister of National Revenue) (Henderson).5 That case concerned the definition of fair market value in the Dominion Succession Duty Act.6 In that case, Justice Cattanach had the following to say about fair market value:
The statute does not define the expression “fair market value”, but the expression has been defined in many different ways depending generally on the subject matter which the person seeking to define it had in mind. I do not think it necessary to attempt an exact definition of the expression as used in the statute other than to say that the words must be construed in accordance with the common understanding of them. That common understanding I take to mean the highest price an asset might reasonably be expected to bring if sold by the owner in the normal method applicable to the asset in question in the ordinary course of business in a market not exposed to any undue stresses and composed of willing buyers and sellers dealing at arm’s length and under no compulsion to buy or sell. I would add that the foregoing understanding as I have expressed it in a general way includes what I conceive to be the essential element which is an open and unrestricted market in which the price is hammered out between willing and informed buyers and sellers on the anvil of supply and demand.7
Justice Cattanach’s approach to defining fair market value in Henderson has been confirmed by the Federal Court of Appeal in a number of decisions. In Nash v. Canada (Nash), the Federal Court of Appeal cited the lower courts’ summary of the Henderson definition of fair market value:
The meat of that definition (Henderson) is the highest price reasonably expected if an asset is sold in the normal method in the ordinary course of business in a market without undue stress composed of willing buyers and sellers.8
In Nash, the Federal Court of Appeal applied the Henderson definition of fair market value in determining the fair market value of groups of limited edition prints that were purchased by the respondent taxpayers and donated to charities and universities. In doing so, the court explained that, typically, the determination of fair market value of certain property depends at least in part on evidence of comparable transactions involving the same or similar property. However, it added that to give effect to the Henderson definition, it is necessary to ensure that the suggested comparisons are sound. The court therefore proposed a two-step approach in applying the Henderson definition of fair market value. The first step is to accurately identify the asset whose fair market value is to be ascertained. The second step is to determine the market in which the asset is normally sold in the ordinary course of business.
The Federal Court of Appeal has endorsed the Henderson definition of fair market value in cases involving the provisions of the Act. In Aikman v. Canada (Aikman), the appellant appealed from a determination by the CCPERB of the fair market value of cultural property under section 32 of the Act.9 The court applied the Henderson definition of fair market value and concluded that the evidence did not support a fair market value higher than the amount assigned by the Board. The decision of the Tax Court of Canada was appealed to the Federal Court of Appeal. The Federal Court of Appeal dismissed the appeal, in effect endorsing the approach to fair market value adopted by the Tax Court of Canada.10
In Canada v Malette (Malette), the Federal Court of Appeal rejected the appellant’s contention that Parliament intended to enhance the tax incentives in the Act that are tied to an object’s fair market value by making a value determination other than in accordance with accepted valuation principles and methodology.11
The Board is bound by the definition of fair market value adopted by the Federal Court and the Federal Court of Appeal in Henderson and Nash and endorsed by the Federal Court of Appeal in relation to the Act in Aikman and Malette.
The language used in defining fair market value in Henderson has been simplified and widely adopted in other jurisprudence and by Canada Revenue Agency and the Review Board. This widely accepted definition is as follows:
The highest price, expressed in terms of money, that a property would bring, in an open and unrestricted market, between a willing buyer and a willing seller who are both knowledgeable, informed, and prudent, and who are acting independently of each other.
Research values and historical values need to be recognized in determining fair market value – archival fonds support the output of masters theses and doctoral dissertations; creation of secondary sources and creative works; film and television productions; and research and development in all fields of enquiry – these endeavours all have a positive economic impact and can be quantified in monetary terms.
CCPERB recognizes the unique value of archival cultural property as an essential source of new and sustained knowledge, as a wellspring of creativity and potential innovation, and as vital documentary evidence contributing to civic accountability and social justice.
Historical and research values are not exclusive to archival cultural property. They are factors inherent in the vast majority of cultural property for which certification by CCPERB is sought. Explicitly, the Act makes these values central to CCPERB’s determination of the cultural property’s outstanding significance. Specific criteria in this regard includes consideration of the cultural property’s close association with Canadian history, its close association with national life, its value in the study of the arts, or its value in the study of the sciences. These criteria are embedded in the Act.
However, the fact that cultural property may be of outstanding significance due to its unique historical or research value is not evidence of market value. A determination of fair market value must reference market evidence. Based on that evidence, an accompanying justification may then address factors that are unique to the cultural property as a means of extrapolating fair market value. In the absence of such evidence and justification, CCPERB may be able to determine that an object is of outstanding significance, but may lack the data required to determine the object’s fair market value.
CCPERB has no jurisdiction to determine a value for archival cultural property, or any other type of cultural property, based on any valuation other than fair market value. The fact that an object has historical or research value—even where the historical or research value is undeniable—may have no bearing on what the cultural property would command on the open market. Guidance on this point can be obtained from the decision of the Tax Court of Canada in Aikman. The Court had the following to say about the relationship between historical interest and fair market value:
It was also argued that since the Board had determined that the [prototype flying machine] is of outstanding significance and national importance, this in itself should be reflected in its fair market value. At first blush this would appear to be a plausible argument, but on reflection it does not bear close scrutiny. The fact that something is of unique historical interest, or has been accepted by the Board as being of outstanding significance or national importance, really has no particular bearing on what a knowledgeable purchaser would pay for it, nor does it create a market where none exists.12
Again, CCPERB is committed to providing guidance and support to applicants where the cultural property poses unique challenges in the context of an application for certification. However, CCPERB remains bound by the statutory language of the Act, and the relevant jurisprudence and requirements of administrative law.
It is not clear why CCPERB will not accept previous appraisals or previous CCPERB determinations as components of a potential methodology.
Increasingly, appraisals of archival cultural property have relied on prior appraisals submitted to CCPERB in order to estimate fair market value. Typically these appraisals make reference to prior appraisals, but do not specify the value estimated in the prior appraisals, the valuation methodology used in the prior appraisals, or how the values in the prior appraisals are used in estimating the value of the cultural property under consideration. Also, there is typically no explanation, or only a cursory explanation, provided for how the prior archival cultural property is comparable with the cultural property being appraised.
In addition, these appraisals typically do not take into account whether the amounts estimated in the prior appraisals were, in fact, the amounts ultimately determined by CCPERB as fair market value. Market conditions also change over time, and any consideration of previous appraisals therefore would need to include an analysis that reflects the market fluctuations in the intervening period. Consequently, these appraisals do not provide an adequate factual underpinning to enable CCPERB to rely on past appraisals to make a determination of market value for the cultural property at hand.
Furthermore, it is possible, and indeed it may be likely, that the prior appraisals propose a value based on historical or research value. As noted above, such a value is central to CCPERB’s determination of the cultural property’s outstanding significance, but is not market evidence required to inform a fair market value determination. CCPERB therefore cannot rely on prior appraisals as reliable indicators of the cultural property’s fair market value.
It is also common practice for appraisers to include a statement in their appraisal report indicating that it is not intended for use by others and should not be relied upon or used by any third party unrelated to the immediate purpose of the appraisal.
If CCPERB were to use one of its prior determinations of fair market value in determining the fair market value of cultural property in the context of a new application, administrative law would require CCPERB to disclose its prior determination and justify the use of such determination in its redetermination decision. However, CCPERB is not able to either disclose or cite past fair market value determinations in new applications. Doing so is prohibited under the Income Tax Act13. Section 241 of the Income Tax Act prohibits CCPERB from disclosing information regarding its prior fair market value determinations in reasons for decisions. The information that CCPERB receives in the context of applications for certification is collected on behalf of the Minister of National Revenue. As such, the information provided by applicants in the context of certification, including the supporting appraisals, is “taxpayer information” as defined in section 241. Subsection 239(2.2) of the Income Tax Act provides that it is an offence to contravene section 241, and provides for sanctions for contravention of that section.
In short, by law CCPERB cannot use the protected information of one taxpayer in providing its reasons for a decision in an application concerning cultural property of another taxpayer.
Appraisers carry out searches of sales data from various dealers and auction houses if applicable and available, but typically there are few or no established open public markets for certain archival materials because of the lack of interest by the collectors’ market, daunted by the size of whole archival fonds.
Many archival stakeholders indicated that there is no market for archival cultural property in Canada, or at a minimum there is no market for entire fonds. Supply and demand are key determinants in establishing fair market value of cultural property, and both factors can increase or diminish over time. Currently, archival cultural property of outstanding significance may be particularly desirable in a Canadian institutional setting, but otherwise may not have a market beyond our borders. Likewise, where an international market exists for Canadian archival cultural property, it typically focuses on a limited number of high-profile creators and any financial data may be subject to privacy restrictions.
CCPERB acknowledges that in the decades since the Act was enacted, the Canadian institutional market for archival cultural property has changed substantially. The Act was enacted at a time when Canadian archival institutions had the budgetary means to sustain a market for some Canadian archival material. In the intervening years, acquisition budgets have diminished or disappeared, leading institutions to rely on other incentives, including the tax incentives inherent in the certification of cultural property, to encourage donations.
Though the market for Canadian archival cultural property has changed, the relevant provisions of the Act have not. Similarly, the conventions of the monetary appraisal of archival cultural property developed in the 1970s have persisted, while the accumulated jurisprudence binding on CCPERB has evolved considerably over that same period.
In the absence of legislative amendments, CCPERB must apply the existing language of the Act and the definition of fair market value as established at law, and it must do so equally for all applicants, regardless of the specific type of cultural property identified in the application for certification. As stated above, CCPERB acknowledges that there will be exceptions to the form and content of appraisals, given the diversity of cultural property covered by the Act; however, the nature of CCPERB’s determinations always is bound by the language of the Act itself, where fair market value governs CCPERB’s determinations of monetary value.
On a practical note, while the guide recommends that appraisers cite market evidence within five years of the date of the cultural property’s disposition, it does not limit this evidence to five years. The guide acknowledges that, where there is difficulty in identifying recent comparable sales, the appraiser may refer to sales that took place over a longer period of time.
CCPERB also recognizes that a comparison of market evidence for individual objects against other individual objects typically involves a more direct calculation and justification. With archival cultural property in mind, there may be some relevant market data for certain of the objects within an archival fonds that can be cited in order to extrapolate in a reasoned justification an estimated value for a diverse grouping of material within the fonds. The integrity of the entire fonds is understood, but in the absence of comparable market data at the fonds level, CCPERB encourages appraisers to propose a value for groupings or tiers of objects, such as common groups of records, documentary art, or photographs contained within a fonds, based on available market data and a sound reasoned justification.
Suggesting that the cost method should only be used in “exceptional” cases will negatively affect the appraisal of many types of archival records, such as photographs, film and moving images.
CCPERB often receives applications for certification of cultural property such as photographs, film, and moving images in a non-archival context, together with supporting market evidence. The fact that these or other objects form an integral part of an archival fonds or collection is not a barrier to using relevant market information for these materials, and extrapolating an estimated fair market value based on the appraiser’s reasoned justification.
Although CCPERB has accepted the cost of reproducing an object in estimating fair market value in the past, the Board will no longer accept that approach unless the appraiser can demonstrate that using that approach results in a reliable estimate of fair market value. This is made clear in the Guide for Monetary Appraisals.
The Tax Court of Canada in Aikman considered two appraisals that used the cost approach in estimating fair market value of a prototype of a unique flying machine. In concluding that the cost to reproduce the flying machine was not a reliable estimate of fair market value, the court stated:
What it cost historically to produce a prototype, or what it might cost to reproduce it, might have nothing to do with what price the object would command on the open market. It might be much higher or much less. I am sure that the actual cost of reproducing Lindbergh’s Spirit of St. Louis, or the plane that the Wright brothers flew in would be significantly less than what a wealthy collector or museum would pay for the originals of these aircraft. Conversely, the cost of reproducing an object might well be far in excess of the price it could fetch on the open market. For that reason, I do not regard replacement cost as a reliable guide to fair market value.14
CCPERB is equally of the view that what it cost to reproduce a photograph or an audio-visual work may be significantly less or be far in excess of the price that those objects would command on the open market. In the large majority of cases, that cost would have no bearing on the object’s fair market value.
Note that the guide does not preclude the use of the cost method where appropriate, as long as the accompanying reasoned justification demonstrates that using that method results in a reliable estimate of fair market value. This will likely be the exceptional case. It is the role of the appraiser to justify the valuation methodology as a reliable estimate of fair market value in respect of the specific type of cultural property being appraised.
In the past archival applications have constituted 20% to 25% of all applications submitted to CCPERB.
This proportion of archival applications may have been the case many years ago. It has not however been the case in recent years. In order to provide an accurate estimate of the proportion of applications submitted to CCPERB for certification that relate to archival cultural property, CCPERB conducted an analysis of the number of applications that fall within the class of archival cultural property as compared with the total of applications for cultural property received by CCPERB over the last two years. The class of applications that include archival cultural property were 12% of the total number of applications received. Of that, almost 10% of the archival-class applications, or 1% of the total number of applications received, related to groups of rare books.
The guide makes no reference to digital records and yet more and more traditional paper-based records are being augmented, if not replaced, by born-digital records across all media.
The Guide for Monetary Appraisals applies equally for all forms of cultural property. Digital records that are associated with physical objects can be certified as cultural property. As with other types of cultural property, market evidence and a reasoned justification must be provided in support of the appraised value of digital cultural property.
To date, there have been only limited circumstances in which appraisers have been able to demonstrate that there is a market in which digital objects trade and been able to provide market evidence to justify a fair market value estimate. In most instances, CCPERB has not been able to determine a fair market value in excess of zero for digital records. This is consistent with the practices in making comparable fair market value determinations of digital records in the United Kingdom, the United States and Australia.
A meeting with representatives from NAAB, intended for the end of March 2020, was cancelled due to the pandemic. This meeting was to begin a discussion on how fair market value for digital records might be estimated. CCPERB intends to enter into such a discussion with NAAB and other interested stakeholders now that it has finalized the Guide for Monetary Appraisals.
CCPERB is committed to ongoing engagement with archival stakeholders with a view to improving its policies and procedures, recognizing that the outcome of these improvements are equally applicable to all applicants and to all forms of cultural property. CCPERB does not regard the Guide for Monetary Appraisals—or any of the supporting materials it prepares to assist applicants—as an immutable document. CCPERB is open to hearing from stakeholders in order to continuously improve and clarify its processes where it is possible to do so under existing law. Thank you to the organizations and individuals who have submitted comments on the Guide to Monetary Appraisals to date.
Return to footnote 1 referrer RSC 1985, c C-51.
Return to footnote 2 referrer RSC 1985, c 1 (5th Supp).
Return to footnote 3 referrer 2019 SCC 65.
Return to footnote 4 referrer Ibid, at paras 77 and 79.
Return to footnote 5 referrer  FCJ No 800, 73 DTC 5471.
Return to footnote 6 referrer RSC 1952, c 89.
Return to footnote 7 referrer Supra note 5 at para 21.
Return to footnote 8 referrer 2005 FCA 386 at para 12.
Return to footnote 9 referrer  TCJ no 7.2
Return to footnote 10 referrer 2002 FCA 114.
Return to footnote 11 referrer 2004 FCA 187.
Return to footnote 12 referrer Supra note 9 at para 113.
Return to footnote 13 referrer Supra note 2.
Return to footnote 14 referrer Supra note 9 at para 109.
The Cultural Property Export and Import Act (the Act) defines the membership of the Canadian Cultural Property Export Review Board (CCPERB) in subsection 18(2) as follows:
The Chairperson and one other member shall be chosen generally from among residents of Canada, and
As a result of these membership requirements, CCPERB members have a range of expertise in the types of cultural property that regularly come before CCPERB for decisions. This expertise 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.
Fair and Impartial Decision Making
Recognizing that the expertise required in the Act is based on the members’ personal and professional engagement in the domains of cultural property, CCPERB is committed to upholding fair and impartial decision making by preventing circumstances that would create a conflict of interest or a reasonable apprehension of bias.
Members of CCPERB must comply with the provisions of the Conflict of Interest Act, administered by the Conflict of Interest and Ethics Commissioner.
Members are required to recuse themselves from deliberations and decisions that would give rise to a conflict of interest or a reasonable apprehension of bias.
In the case of a conflict of interest, recusal is required in circumstances where the exercise of the member’s duties would further his or her private interests or those of his or her relatives or friends, or improperly further another person’s private interests.
In the case of a reasonable apprehension of bias, recusal is required in circumstances where the exercise of the member’s duties would cause an informed person, viewing the matter realistically and practically, and having thought the matter through, to conclude that it is more likely than not that the member, whether consciously or unconsciously, would not arrive at a fair and impartial decision.
This model directive is intended to provide guidance on the Canadian Cultural Property Export Review Board (Review Board) practice and interpretation of relevant legislation. However, in the event of any inconsistency between this model directive and the applicable legislation, the legislation must be followed. The provisions of this model directive are general guidelines only, are not binding in any particular case and are subject to change.
Adopted by the Canadian Cultural Property Export Review Board on December 11, 2019
This model directive is intended to provide guidance on the Canadian Cultural Property Export Review Board (Review Board) practice and interpretation of relevant legislation. However, in the event of any inconsistency between this model directive and the applicable legislation, the legislation must be followed. The provisions of this model directive are general guidelines only, are not binding in any particular case and are subject to change.
This model directive outlines the procedure the Review Board will follow in considering a request for review of an application for an export permit (a request for review) made by a person (an applicant) pursuant to section 29 of the Cultural Property Export and Import Act (the Act), unless the circumstances of a particular case require otherwise.
The Review Board’s objective in issuing this model directive is that a proceeding before the Review Board initiated by a request for review (a proceeding) be informal, expeditious, fair and transparent.
In any proceeding, the Review Board may vary, supplement or dispense with any requirement set out in this model directive as circumstances require.
All communications to the Review Board must be filed by email using the following address:
The Review Board may, upon request from an applicant, allow the applicant to submit a communication by a means other than email.
A communication is filed with the Review Board on the day on which it is received by the Review Board.
A document filed as an attachment to an email must be in PDF format.
The Review Board may, upon request from the applicant, allow the applicant to file an attached document in another format.
A digital photograph filed by an applicant in a proceeding must be in JPEG or TIFF format with a file size no less than 700 kilobytes and no more than 2 megabytes.
The Review Board may, upon request from an applicant, allow the applicant to file a digital photograph in another format.
Any communication filed with the Review Board in a proceeding - including an application for an export permit, a request for review, a written statement, an expert report and a photograph - will be placed on the public record unless the Review Board orders that the communication or part of the communication be treated as confidential.
An applicant that wishes a communication or part of a communication to be treated as confidential must, at the time the communication is filed, request that the Review Board treat the communication or part of the communication as confidential.
For each communication for which the applicant requests confidentiality, the applicant must file with the Review Board:
For the Review Board to order a communication or part of a communication to be treated as confidential, the applicant must establish that a serious risk to an important interest could result from the disclosure of the confidential information. The applicant’s request must therefore explain the serious risk to an important interest that could result from the disclosure of the confidential information.
The request for confidentiality and the public version of the communication from which the confidential information has been redacted will be placed on the public record pending a decision of the Review Board on the request for confidentiality.
An applicant may use either English or French in any communication with the Review Board, and any communication from the Review Board to the applicant will be in the language used by the applicant in the applicant’s last communication.
Any communication filed by the applicant that is not in English or French must be accompanied by a translation into either English or French and be accompanied by a statement from the translator that the contents of the translation are a true translation and representation of the contents of the original document.
An applicant may designate a representative to represent the applicant in a proceeding by sending a written notice to the Review Board setting out the representative’s name, address and email address.
Upon receipt of a written notice from the applicant designating a representative, the Review Board will communicate with the representative instead of communicating with the applicant, and any communication with the representative will have the same effect as a communication with the applicant.
This directive outlines the time limits for steps to be taken in a proceeding that the Review Board will establish in each proceeding, unless the circumstances of a particular case require otherwise.
Upon request from an applicant, the Review Board may extend any time limit set in a proceeding either before or after the end of the time limit if the Review Board is satisfied that the applicant’s reasons for requesting the extension of time are justified in the circumstances.
An extension of time granted by the Review Board may have an effect on the Review Board’s ability to render a decision within four months after the request for review is receivedFootnote 1.
The Review Board will consider facts and information it receives from an applicant in a proceeding without regard to whether these facts and information are presented in a manner that complies with legal or technical rules of evidence, so long as these facts and information are credible and relevant to the proceedingFootnote 2.
In a proceeding the Review Board will determine whether the object that is the subject of the request for review:
If the Review Board determines that the object meets all of the above criteria, the Review Board 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 proceedingFootnote 4. If so, the Review Board will establish a delay period of not less than two months and not more than six months during which the Review Board will not direct that an export permit be issued in respect of the objectFootnote 5. The purpose of the delay period is to provide an institution or public authority in Canada with an opportunity to purchase the object.
If the Review Board determines that an object fails to meet one of the above criteria, the Review Board will direct a Canada Border Services Agency permit officer (a permit officer) to promptly issue an export permit for the objectFootnote 6.
The Chair of the Review Board may establish a panel to make a decision in a proceeding.
A panel established by the Chair of the Review Board will comprise at least three members of the Review Board.
A panel established by the Chair of the Review Board will comprise:
The Review Board will advise an applicant of the names of the members of the Review Board who will take part in the decision in a proceeding.
An applicant whose application for an export permit was refused by a permit officer may, within thirty days after the date on which the notice of refusal was sent, request a review of the applicant’s application for an export permit by the Review BoardFootnote 8.
A request for review may only be filed after a permit officer has refused to issue an export permit for an object that appears to be included in the Control List.
A request for review may be filed either in respect of an object that is located in Canada, or in respect of an object that is temporarily located outside of Canada in accordance with a permit issued in accordance with subsection 7(a) of the Act.
A request for review filed with the Review Board must include:
Upon receipt of a request for review, the Review Board will send to the applicant an acknowledgment of receipt of the request for review.
The Review Board will post on its website the following information with respect to each request for review:
The Review Board will require an applicant to file with the Review Board a written statement within 15 days after the date of the acknowledgment of receipt of the request for review, unless the circumstances of a particular case require otherwise.
An applicant’s written statement must contain:
An applicant may file with the Review Board together with its written statement one or more expert reports. An expert report may express an opinion on any fact at issue in the proceeding.
An expert report must include the expert’s qualifications to provide the opinions expressed in the expert report.
The Review Board may, at any time, request in writing the advice of an independent adviser on any fact at issue in a proceeding.
Any advice from an adviser will be given in the form of a written report.
The Review Board will send a copy of an adviser’s written report to an applicant, together with the Review Board’s written request for advice.
The Review Board will provide an applicant with 15 days to file comments on the written report, unless the circumstances of a particular case require otherwise.
The Review Board may, at any time before making its decision in a proceeding, request from the applicant additional information that the Review Board may require in order to make its decision.
The Review Board may, at any time before making its decision in a proceeding, request the applicant to make the object that is the subject of the request for review available in Canada for examination by one or more members of the Review Board or by an adviser whose advice was requested by the Review Board in accordance with paragraph 8 of this directive.
Upon receipt of a request, the applicant must make the object available in Canada at a time that is convenient for both the applicant and the Review Board or an adviser.
The Review Board will require all members of the Review Board or an advisor who examined the object to provide the Review Board with a written report setting out observations and conclusions reached about the object based on the examination.
The Review Board will send to an applicant any written report prepared by a member of the Review Board or by an adviser who examined the object.
The Review Board will provide an applicant with 15 days to comment on any written report, unless the circumstances of a particular case require otherwise.
Before making a decision in a proceeding, the Review Board will send to the applicant a written notice informing the applicant that the Review Board considers the file to be complete.
The written notice will provide the applicant with the opportunity of making a request in writing for a hearing of the proceeding. The Review Board will provide the applicant with 10 days to make the request, unless the circumstances of a particular case require otherwise.
A hearing will generally be conducted by the Review Board by teleconference, unless the circumstances justify otherwise. If an applicant wishes to have a hearing in person before the Review Board, the applicant’s written request must include the circumstances as to why a hearing in person is required.
If the Review Board does not receive a written request for a hearing from an applicant, the Review Board may make its decision in the proceeding without conducting a hearing or may on its own initiative schedule a hearing.
If applicable the Review Board will send to the applicant a notice in writing setting out the time, date and any other information necessary to enable the applicant to participate in the hearing. The notice will indicate whether the hearing will be by teleconference or in person.
The purpose of a hearing is to give the applicant the opportunity to make oral submissions to highlight specific facts or issues related to the proceeding.
At the hearing the Review Board may ask the applicant questions about the proceeding.
The Review Board will render its decision in a proceeding within four months after the request for review is received, unless the circumstances of a particular case require otherwiseFootnote 14.
If the Review Board determines that an object is not on the Control List, is not of outstanding significance, is not of national importance, or if the Review Board is of the opinion that no fair offer to purchase might be made by an institution or public authority in Canada within six months, the Review Board will direct the permit officer to promptly issue an export permit for the objectFootnote 15.
If the Review Board determines that an object is on the Control List, is of outstanding significance and is of national importance, and if the Review Board is of the opinion that a fair offer to purchase might be made by an institution or public authority in Canada within six months, the Review Board will establish an export delay of between two and six monthsFootnote 16. During the delay period, the object cannot be exported from Canada.
The Review Board will send to an applicant a copy of its decision in a proceeding in writing together with the Review Board’s reasons for the decision.
If the Review Board establishes an export delay, the delay period will begin on the date of the Review Board’s written decision.
If the Review Board establishes an export delay, the Review Board will give written notice of the delay period to the Minister of Canadian HeritageFootnote 17.
Every decision of the Review Board in a proceeding will be posted on the Review Board’s website together with the Review Board’s reasons for decision in both official languages.
After the expiration of a delay period and upon request by an applicant, the Review Board will direct a permit officer to promptly issue an export permit for an object, unless the Review Board has received a request for the determination of a fair cash offer to purchase the objectFootnote 18.
In case of judicial review of a Review Board decision in a proceeding, the Review Board will act in accordance with the final court decision rendered in the matter, upon expiration of any deadline to appeal the court decision.
Return to footnote 1 referrer Subsection 29(2) of the Act.
Return to footnote 2 referrer Section 28 of the Act provides that the Review Board shall dispose of any matter before it as informally and expeditiously as, in its opinion, the circumstances and considerations of fairness will permit. Section 25 provides that the Review Board may receive any information presented to it orally or in writing that it considers to be relevant to any matter before it and in so doing it is not bound by any legal or technical rules of evidence.
Return to footnote 3 referrer Subsection 29(3) of the Act.
Return to footnote 4 referrer A fair offer to purchase an object is a just and reasonable offer, expressed in monetary value, that takes into account the object’s fair market value, as well as other relevant circumstances of the specific case.
Return to footnote 5 referrer Subsection 29(5) of the Act.
Return to footnote 6 referrer Subsection 29(4) of the Act.
Return to footnote 7 referrer Subsection 18(4) of the Act.
Return to footnote 8 referrer Subsection 29(1) of the Act. The Review Board’s role in a proceeding is not to determine whether the advice of an expert examiner on which a permit officer relied to refuse an export permit was in error. The role of the Review Board is to review the application for an export permit and make its own determination on the matter.
Return to footnote 9 referrer Subsection 13(1) of the Act.
Return to footnote 10 referrer For a manufactured object, provide the name of the manufacturer and the country in which the object was manufactured. Not all objects have a creator or manufacturer (e.g. mineral specimens, paleontological specimens and some archeological objects).
Return to footnote 14 referrer Subsection 29(2) of the Act.
Return to footnote 15 referrer Subsection 29(4) of the Act.
Return to footnote 16 referrer Paragraph 29(5)(a) of the Act.
Return to footnote 17 referrer Subsection 29(6) of the Act.
Return to footnote 18 referrer Subsection 30(4) of the Act.
Applicants for Certification of Cultural Property for Income Tax Purposes to the Canadian Cultural Property Export Review Board (CCPERB) are asked to provide personal information within their applications, including the donor/vendor’s name and contact information, object description information, object documentation, disposition details, the appraiser’s name and contact information, and certain financial and market information contained in the monetary appraisals. This information is collected and submitted to the CCPERB by the designated institution or public authority submitting the application on behalf of the donor/vendor.
The CCPERB Secretariat is made up of employees from the Administrative Tribunals Support Service of Canada (ATSSC). Secretariat staff manage the processing, administration and storage of applications and the information contained therein.
The personal information collected is used by CCPERB to make certification decisions for income tax purposes to issue Cultural Property Income Tax Certificates (T871s).
In addition, the CCPERB Secretariat may contact a representative from the designated institution (such as the Director/CEO or delegated signing authority, a curator, registrar, or lawyer) for clarification about the disposition details or other aspects of the application.
Furthermore, aggregate statistical information is collected on certified cultural property for inclusion in the Annual Report on the activities of the Cultural Property Export and Import Act, to share with the Canada Revenue Agency and the Department of Finance Canada, and for use in outreach activities.
The Secretariat to the CCPERB maintains all the applications submitted on line archived in its database indefinitely for reporting purposes.
All information relating to applications for certification of cultural property for income tax purposes is treated as ‘Protected B’, a classification that requires, as a matter of federal government policy, enhanced security measures like restricted access and password protection.
All personal information held or collected by the CCPERB is protected under the provisions of the Privacy Act. A donor/vendor has the right to access and/or correct their own personal information, making a specific request.
Section 33(2) of the Cultural Property Export and Import Act and sections 241(4)(d)(xii) and 241(4)(e)(vi) of the Income Tax Act authorize the Review Board to share certain information about applications for certification of cultural property for income tax purposes with the Canada Revenue Agency as it relates to administering the Income Tax Act. Certain information may also be provided to Department of Justice lawyers assigned to the CCPERB who may be consulted for general legal advice, or legal advice related to specific applications.
Otherwise, the CCPERB is bound by section 241 of the Income Tax Act, and is prohibited from sharing any taxpayer information that may directly or indirectly identify the taxpayer.
To open and complete CCPERB’s fillable PDF forms, you will need the latest version of Adobe Acrobat Reader (version X or most recent). If you do not have it installed on your computer, you may download the latest version free of charge of Adobe Acrobat Reader for PC and Mac users.
In addition to handwritten signatures on printed forms, the following types of electronic signatures are accepted:
For completed disposition at the time of the application:
For proposed disposition at the time of the application:
For proposed disposition once the disposition agreement is signed:
In order to certify an object for income tax purposes, the Review Board must determine whether the object is of outstanding significance. The justification of outstanding significance is a statement, prepared by the applicant, on which the Review Board relies to make this determination.
The objective of the justification is to demonstrate, using detailed analysis, how the object submitted for certification meets one or more of the criteria of outstanding significance as set out in the Cultural Property Export and Import Act. It is different from a description of the object’s observable features or an institution’s acquisition justification. Furthermore, although information on the creator, collector or acquiring institution may in some cases be relevant, it is not sufficient for the Review Board to make a determination of whether an object is of outstanding significance. It is important that the justification discuss the object itself and clearly demonstrate the characteristics that make it of outstanding significance. This is an analytical rather than a purely descriptive requirement.
To facilitate the review of an application, the Review Board recommends applicants present their justification using the following format:
Identify the object or objects that are the subject of the justification
Include a brief description of the object. For example: J. Smith, Untitled, 1950, oil on canvas.
Identify which criteria of outstanding significance the object meets
As an introduction, clearly identify which of the following criteria of outstanding significance the object meets: close association with Canadian history; close association with national life; aesthetic qualities; value in the study of the arts; and / or value in the study of the sciences.
Demonstrate how the object meets the criteria identified
The body of the justification should present arguments in support of the chosen criteria identified in the introduction. For clarity, it is advised to treat each criterion separately, clearly identifying each one using a subtitle.
The arguments presented must be specific to the object that is the subject of certification. The arguments should be sufficiently precise and focus on the object in the application. Objects that are not part of the application for certification should only be discussed if they directly relate to the object in question.
The outstanding significance of the object should be addressed in a precise manner, avoiding the use of lengthy citations from secondary sources.
Please refer to Outstanding Significance for Certification for more information on the specific requirements of each criteria.
Summarize in a short paragraph why the object is of outstanding significance for Canadian heritage.
The justification of outstanding significance should present an argument in which the applicant demonstrates how the object meets the criteria of outstanding significance identified in the introduction. The justification should be based on specific examples and facts and not on a subjective assessment of the object.
The Review Board has not set a precise word count for justifications of outstanding significance. The arguments must, however, be sufficiently detailed to enable the Review Board to make a decision, while remaining concise and focused on the object in question. Depending on the nature of the object, justifications vary, on average, between two and three pages.
Although this information may be relevant in supporting arguments related to the outstanding significance of the object, the justification cannot focus solely on these factors.
Biographical details should only be included in the justification if they relate directly to the object presented for certification. If the applicant finds it pertinent to provide biographical information that is not directly related to the object, this information can be submitted as a separate document.
If the application includes several objects, please contact the Secretariat to the Review Board to determine if a justification of outstanding significance is required for each item, for the objects as a collective whole, or for logical groupings of objects within the application.