The Art Law Review: Canada

Introduction

While Canada is not a major art market country, its role in the art trade is nevertheless significant. The domestic art market has been growing consistently, especially with regard to First Nation and other indigenous artists, and certain Canada-based art market players are making overtures on the international scene.2 Canada's proximity to the US art market and its historical and ongoing links with Europe are assets. The newly minted US–Mexico–Canada Agreement and the Canada–EU Trade Agreement are likely indications that continental and transatlantic market relations will continue, or even grow, in the years ahead.

Canada is also an important case study in art law due to the ways in which federal legislation has continued to have an impact on the art market since the 1970s. Federal laws affect the import and export of cultural property, as well as areas such as copyright, moral rights and – a Canadian oddity – 'exhibition rights' for artists when their works are displayed at museums and galleries. As a middle or 'soft' power, Canada has always been involved in multilateralism on the world stage: in the context of art and cultural heritage, this means Canada has signed up to nearly all the major conventions and international agreements in this area. In many ways, Canada tends to go further than what is required under its international legal obligations. This can be seen in the way in which Canada implemented the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, as well as in the rights it has offered artists (i.e., exhibition rights) that go beyond the requirements of the Berne Convention for the Protection of Literary and Artistic Works.

On the whole, Canada can be seen as following the middle ground when it comes to state regulation of the art trade: there is more regulation than can be found in the United States, for example, but far less than exists in Continental Europe. The tension between these two extremes at times plays out on the Canadian judicial stage. On one side are the interests of art market players (dealers, auction houses and major collectors) and on the other the interests of the common good, namely protecting national heritage both at home and abroad. The case of R v. Yorke exemplifies this tension, as does the more recent decision in Attorney General v. Heffel, which is explained more fully in Section II.

As Canada is a federal state, it is important to recall the different jurisdictional levels and the impact each might have on the trade in art. While there are significant laws and regulations at the federal level, each of Canada's 10 provinces and three territories will also bring their own rules to bear. Under the Canadian Constitution, the provinces have jurisdiction over 'property and civil rights', which means that major controls over dealing in heritage property are placed in the hands of the provinces, while the federal power controls international import and export, as well as intellectual property.3 As a result, general heritage laws governing heritage properties, monuments and archaeological sites are found at the provincial level (i.e., each province will have its own). This means they can vary; for instance, the French-speaking province of Quebec will have a far more statist approach to heritage than the nine English-speaking provinces.

The year in review

Of course the coronavirus pandemic has been the major topic for the art market and museums in Canada over the past year, as it has been everywhere else. Both art market players and institutions have been struggling to deal with the financial turmoil caused by the pandemic and the lockdown. This has, to a large extent, placed esoteric 'art law' matters to the side for the time being. Following the pandemic, a government plan to assist laid-off employees and small businesses has certainly been helpful to art businesses, though there remain questions as to whether these subsidies will outlast the economic downturn.4 A number of businesses have started selling off parts of their corporate collections to downsize and release much needed liquidity,5 though it has yet to be seen whether such an approach will be followed by public sector institutions.6 A government fund has been created to assist museums across the country,7 while sector associations such as the Canadian Museums Association have been actively assisting the recovery for institutions both large and small.

In terms of art law, we are still dealing with the fallout from two important cases decided in 2019. The first of these was Attorney General of Canada v. Heffel Gallery Limited,8 involving the judicial review of an export licensing decision over a painting by French Impressionist Gustave Caillebotte. The painting had been in a private Canadian collection since 1960 and was being exported after its sale to a UK buyer. The export permit had been delayed because the federal board that deals with export matters (the Canadian Cultural Property Export Review Board) had considered the work to be of 'outstanding significance' and of 'national importance'. This last determination was challenged through the courts, ultimately resulting in an unfavourable decision for the exporter from the Federal Court of Appeal, which approved the Board's broad approach to the question of national importance. This decision, and a small but important change to the tax scheme for cultural property donations, has had a significant impact on the trade and collecting of art in Canada (see Section V.ii).

The second major case was that of Hearn v. McLeod Estate,9 an Ontario decision involving the purchase of a painting by the celebrated First Nations artist Norval Morrisseau, a work that turned out to be fake. The buyer tried to recover the price paid, but the dealer who sold the work refused. It went to court and the final decision came from the Ontario Court of Appeal in 2019, which found in favour of the purchaser. Importantly, the Court made some useful pronouncements about when a contract of sale can imply a term as to the authenticity of the work. This decision puts Canada at odds with decisions over similar implied terms in England. Beyond the legal sphere, the dispute also did much to bring attention to a string of Morrisseau forgeries (possibly numbering in the hundreds) created in the 1970s and 1980s that are still in circulation. This has been comprehensively documented in the excellent film There are no fakes (2019) by director Jamie Kastner. It has also been written about in Art Antiquity and Law.10

Beyond this, there are lingering discussions at governmental levels about updating the copyright regime in Canada. Most of the talk now relates to digital service providers, without much knock-on effect for the art trade or museums, but the idea of introducing an artist's resale right similar to that in the European Union has been floated. This has not made much headway. Recall that Canada provides exhibition rights to its artists, for works made after 1988, which assists in providing a stream of royalties to artists for different types of exhibition of their works. On the flip side, museums and galleries often consider this an added cost to putting on exhibitions, which may in the end result in the staging of fewer shows of Canadian artists. Nevertheless, it may be that with this right already in existence, there is no stomach for an additional resale right.

Art disputes

i Title in art

For reasons relating to Canadian federalism, questions about property and ownership of personal or movable property are of provincial concern. This is because property and civil rights fall within the provincial jurisdiction under the Canadian Constitution. As a result, there is no pan-Canadian set of rules that applies when it comes to purchasing art and obtaining title, but rather one that will rely on the relevant province in which the transaction occurs. That said, certain generalities exist across the nine English-speaking provinces, which take their lead from English common law principles.

For instance, the common law principle of nemo dat quod non habet applies across Canada's English-speaking jurisdictions. The consequence of this is that title remains with the original owner of movable property and a subsequent possessor will not be able to pass on any better title than the possessor actually has. By this principle, a thief will never be able to pass on any better title than he or she has (that is, it can always be trumped by superior title on behalf of the true owner). However, this is subject to the limitation or prescription periods, which will be different depending on the province (see Section III.iii).

In the French-speaking province of Quebec, the situation is rather different. This is because Quebec operates a private law system on the basis of a Civil Code, similar in many ways to those found in Continental Europe, drawing their inspiration from the Napoleonic Code of 1804. As a result, some of the rules relating to acquisition and title share more with principles of French law than with the systems of Quebec's neighbouring provinces. This is one example of a challenge that has existed since Canada's inception: French and English embodying two solitudes at work within a single state. The Civil Code of Quebec, for instance, repeats the famous French adage that 'en fait de meubles, possession vaut titre' ('regarding movable property, possession equals title'),11 though this is of course subject to the rules of prescription (see Section III.iii).

ii Nazi-looted art and cultural property

In Canada, there have been surprisingly few restitution disputes relating to Nazi-spoliated art. As reported in the press, there have only been three returns by Canadian museums to the heirs of Holocaust victims: a Vuillard returned by the National Gallery of Canada in 2006, a van Honthorst returned by the Montreal Museum of Fine Arts in 2013 and a Verspronck returned by the Hamilton Museum in 2014.12 As far as reported, these returns were all made upon moral, as opposed to legal, grounds. This is because of the issues relating to limitation and prescription periods (see Section III.iii) by which it would be almost inconceivable for the heirs of a spoliation victim to retain title despite the passage of time. Nevertheless, provenance work by some of the major museums has been undertaken and certain results made public.13

On the topic of the recovery of Nazi-spoliated art, something must be said about the work of the Max Stern Art Restitution Project (MSARP). This is a restitution campaign run out of Concordia University in Montreal that seeks to recover the more than 200 works sold by German Jewish dealer Max Stern at a forced-sale auction in Düsseldorf in 1937. After fleeing Germany, Stern had ended up in Canada where he had made a life for himself as a successful dealer in Canadian art. When he died in 1987 his beneficiaries were Concordia University, McGill University and the Hebrew University in Jerusalem. After learning about the 1937 forced sale, the beneficiaries decided to attempt to track down the paintings, scattered as they were around the world, and for this purpose established the MSARP. Beginning operations in 2002, it has successfully recovered over 20 works of art, including in the United States and Germany.

iii Limitation periods

As with title and ownership, limitation periods are a matter of provincial jurisdiction. They will therefore differ across Canada's 10 provinces. For example, the general limitation period in Ontario, Canada's most populous province, is two years. This period generally begins when the claim has been discovered.14 If a claim in conversion is brought against a purchaser of personal property for value acting in good faith, it must be brought within two years of the conversion.15

In Quebec, the Civil Code covers matters of 'prescription' (the term also found in France and most Continental European jurisdictions). The general rule is broadly as follows: a good faith possessor acquires title in movable property through acquisitive prescription three years from the original loss or theft. If the possessor is not in good faith, the acquisitive prescriptive period is 10 years. However, in both cases the possession must be peaceful, continuous, public and unequivocal to qualify.16 This matter was recently dealt with by the Quebec Superior Court, which decided that, in the case of a stolen painting held by a good faith possessor, hanging the painting in his home was sufficient to qualify as 'public' possession. As such the possessor gained title through acquisitive prescription.17

iv Alternative dispute resolution

Like most advanced countries, the Canadian legal system is very familiar with arbitration as a method for resolving disputes, including art disputes. Each province will have specific laws recognising the validity of arbitration awards, which in cases of dispute may need to be approved through the courts.18 There are no specific alternative dispute procedures for art-related disputes.

One of the longest and most bitterly fought arbitrations in the art world took place in Canada. This was the dispute over the collection of Lord Beaverbrook, a Canadian-born UK statesman and newspaper magnate who had assembled works during his lifetime and disposed of them in the 1950s. A man of great wealth, Beaverbrook had established a gallery in his boyhood province of New Brunswick and had transferred his collection to the gallery through the legal vehicle of a UK-based foundation. The near-entirety of the collection remained at the New Brunswick gallery for some 40 years following Beaverbrook's death in 1964. In 2003, a dispute arose when the UK foundation sought formal recognition of its ownership, as well as the return of the two most valuable works in the collection for the purposes of sale (JMW Turner, The Fountain of Indolence and Lucian Freud, Hotel Bedroom). The gallery fought back, claiming that these had been the subject of a gift by Beaverbrook to the gallery upon its opening in 1959.

The parties agreed to resolve the dispute through arbitration, and decided on a hearing by a single arbitrator, a retired justice of the Supreme Court of Canada. The arbitrator found in favour of the gallery, deciding the matter on the law of gift. The rules for gift in New Brunswick that applied were the same as in other common law jurisdictions: because there had been delivery, intention to give and acceptance, a gift of the collection works was found to have occurred in 1959.19 The UK foundation was not satisfied with the result and decided to appeal the award. The parties had provided for an appeal mechanism in their arbitration agreement, so an appeal was heard in Toronto by an appellate arbitral tribunal, this time consisting of three retired Canadian judges. Despite attempts by the appellant to undermine the original award (presenting, in the tribunal's words, a 'tsunami' of written and oral submissions), the tribunal approved the original arbitrator's award.20 The gallery was therefore victorious and the vast majority of the works – including the Turner and the Freud – remained in Canada, at the Beaverbrook Gallery in New Brunswick.

Fakes, forgeries and authentication

In the art market in Canada, as elsewhere, the best way for a buyer to protect him or herself from buying a fake or forgery is to provide a clear clause in the contract of sale whereby all moneys paid will be returned if the work turns out not to be genuine. However, this is easier said than done. Unless the buyer is extremely sophisticated, the seller (often a dealer) would usually use its own standard terms, which would almost certainly omit such a clause. And indeed, in many art market transactions, the sale occurs on invoice with no detailed clauses to speak of. In such cases, the buyer will have to rely on implied terms.

Contractual terms can be implied by law, fact or custom. Of most use to buyers will be those terms implied by law. The legislation affecting sales in Canada is provincial, so one would have to consult the rules in the Sale of Goods Act of the relevant province. In the English-speaking provinces, these are for the most part modelled on English legislation, so the implied terms will be similar, if not practically identical, to the English model. That means a buyer will have the ability to rely on implied terms as to title, quiet possession, freedom from charges or encumbrances, goods by description and, in certain circumstances, quality or fitness for purpose.21 There is also consumer protection legislation in each province, which can be of use if the buyer is a consumer purchasing from a business, but usually identical or very similar implied terms as outlined in the general Sale of Goods Acts will apply, though the protection (especially regarding waivers or opt-out clauses) will be stronger in favour of consumers.

An implied term may not necessarily be enough in cases where a buyer has purchased a fake or a forgery. As far as the courts in England have been concerned, such works did not usually qualify under the implied terms for 'goods by description' or fitness for purpose: it has been stated on numerous occasions that a buyer who has contracted to purchase work X, thought to be by artist Y, and who receives work X after paying the price has been contractually satisfied, even if it later transpires that the work is not by artist Y.22 The English courts have been very clear that if a buyer wants a warranty as to authorship of a work, it should be expressly set out in the sale agreement. Reliance should not be made on implied terms within sale of goods legislation.

A recent Canadian decision has taken a rather different approach. In Hearn v. McLeod Estate, the plaintiff had purchased a work said to be by the great First Nations artist Norval Morrisseau from the McLeod Gallery. After the purchase, the plaintiff had doubts as to the work's authenticity and returned to the gallery to ask for a provenance statement to help assuage those doubts. A provenance statement was provided by the gallery. Later on, the plaintiff came to the realisation that the work was a fake, and that the provenance statement provided was itself false, and so sought to recover the price paid from the gallery. The gallery refused and the matter went to court.

Overturning the trial judgment, the Ontario Court of Appeal held in favour of the plaintiff on the basis of the implied terms in Ontario's Sale of Goods Act. While the Court did not come to a conclusion as to the authenticity of the painting, it nevertheless held that the plaintiff, upon seeking a genuine provenance statement, had entered into a 'sale by description'. Because the gallery offered him a work with a false provenance statement, the goods could not have matched the description. Therefore, it came down to the provenance statement, rather than the authenticity of the work itself. Because the statement had been shown to be demonstrably false, the plaintiff had not received what he had sought in the bargain and so could obtain damages for breach of contract.23 The lesson of this case – though it is not clear how far this would apply beyond the jurisdiction of Ontario – is for buyers to make provenance documentation an essential part of the contract. That way, fake or wrongful documentation can taint the contract, thus providing a possible avenue for redress if it turns out the work is not genuine.

Art transactions

i Art loans

As elsewhere, art loans are an important aspect of museum practice in Canada. To protect cultural objects coming into a jurisdiction on loan, five of Canada's 10 provinces have immunity from seizure legislation. These are Quebec, Ontario, Manitoba, Alberta and British Columbia. These provinces first adopted such laws in the 1970s to assure protection of works loaned as part of a major exhibition from the Hermitage in Russia, an exhibition that was to travel across Canada. Because property and civil rights fall within provincial jurisdiction under the Canadian Constitution, immunity from seizure is a matter of provincial concern. There is no federal immunity legislation, as there is in the United States or Australia.

ii Cross-border transactions

In Canada, the import and export of cultural property is governed by a piece of federal legislation, the Cultural Property Export and Import Act (CPEIA). This law was first enacted in 1977 to comply with Canada's accession to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which occurred the following year. As such, Canada was the first major western state to adopt the Convention, paving the way for others such as the United States and Australia in the 1980s. The Canadian law, which now dates from 1985, governs both exports and imports of cultural material, though the Canadian legislation goes further than what is set out in the Convention at Articles 6 (for exports) and 7 (for import restrictions).

In relation to exports, the Canadian approach is very similar to that of the United Kingdom. As such, there are generally no permanent export bars, only deferrals, whereby an export permit for a cultural object of great importance will be withheld for a certain period of time (between two and six months) to allow Canadian institutions the opportunity to acquire the work and keep it in the country. The procedural details are set out within the CPEIA and its accompanying Regulations.24

The type of material that will require an export permit in the first place is set out in the Export Control List.25 When an application is made, the permit officer will forward it to an expert examiner who will assess whether the object is (1) of 'outstanding significance' for reasons relating to history or national life; aesthetic qualities; or the study of arts and sciences, and (2) of 'such a degree of national importance that its loss to Canada would significantly diminish the national heritage'.26 If the object meets both requirements, the export permit is denied. The decision can then be appealed to the Canadian Cultural Property Export Review Board, which will determine once and for all whether the object meets the above criteria. If it does, then the delay period of two to six months will be imposed. It is within this period that Canadian institutions can make a fair offer to purchase the object from the exporter, the amount for which will be set by the Board. If no such offer is made, at the end of the delay period, the exporter will receive the export permit.27 The only way for an exporter to be refused a permit would be where he or she rejected a fair offer to purchase made by a Canadian institution.

The definition of 'national importance' under the CPEIA was put before the courts in the recent case of Attorney General of Canada v. Heffel Gallery Limited. As explained above, this involved the attempted export of a painting by the French Impressionist Gustave Caillebotte, Iris bleus (1892), that had been in a Canadian private collection since 1960. It was sold in 2016 to a UK buyer, a sale facilitated by the auction house Heffel, which then applied for an export permit. The matter went before the Board, which found the object to be of both outstanding significance and of national importance. The decision was challenged by Heffel in judicial review on the issue of whether the Board had interpreted national importance too broadly. While the Federal Court agreed with Heffel that the interpretation had indeed been too broad, this decision was overturned on appeal by the Federal Court of Appeal.28 In its 2019 decision, the Federal Court of Appeal approved the Board's interpretation of national importance and reinstated the Board's decision. In the end, a deal was struck whereby the painting was sold to the Art Gallery of Ontario so it could remain in Canada.

There are generous tax credits available in Canada for donations of cultural property to Canadian institutions (provided they are Category A institutions as set out in the CPEIA), and the assessment of the donated objects will fall under the same legislation, will use the same criteria and will be by the same Board as the export applications.29 In fact, most of what the Board does today relates to tax certification for donations, rather than exports, despite the fact that the Board is known as an export review board.30 More than 90 per cent of the matters before it relate to tax certification, likely because the tax credits available are generous to the taxpayer.31 In addition, the federal government, in its 2019 budget, made it even easier to obtain cultural property certification for art donations by prospectively removing the requirement for national importance. Now, the donor only needs to show that the object is of outstanding significance for history or national life, its aesthetic qualities or the study of arts or sciences to obtain the benefit.

In relation to imports, the CPEIA also sets out the relevant rules. As a state party to the 1970 UNESCO Convention, Canada has implemented an import restriction for cultural property illegally exported from another state party to the Convention.32 As such, the restriction in Canada goes much further than the obligation arising out of the Convention, which only requires states to prevent the import of cultural property stolen from a museum, monument or similar institution and appearing on an inventory.33 There are also related criminal sanctions under the CPEIA for importing such material. These sanctions were challenged as being unconstitutional by an importer of Bolivian textiles in the case of R v. Roger Yorke,34 but the courts upheld the provisions.

A provision was added to the CPEIA in 2005 for Canada to comply with its obligations under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. This provision restricts imports of cultural property removed from an occupied territory, unless such removal was lawful or necessary for the item's protection or preservation.35 There are also criminal sanctions associated with the import of such material.

Artist rights

The intangible rights of artists – for our purposes, copyright, moral rights and exhibition rights – are found within federal legislation: the Copyright Act. This is because intellectual property falls within the federal jurisdiction under the Canadian Constitution. As such, when it comes to copyright, no heed needs to be paid, in general terms, to provincial legislation. That said, there are statutes that exist to protect the 'status of the artist' at both the federal level and in certain provinces.36

Like all other countries party to the Berne Convention for the Protection of Literary and Artistic Works, Canada protects the copyright in artistic works as well as certain moral rights for artists. Likewise, Canada will provide these rights for authors that are nationals of another Berne Convention state or for works first published in a Berne Convention state. Under the Copyright Act, all 'original' artistic works are protected, though originality is defined by the Supreme Court of Canada rather differently than it is in the United Kingdom or the United States: in the CCH case, the Court defined it as requiring intellectual effort that is 'more than trivial', which treads a typical middle ground between the low UK threshold and the somewhat higher US one.37 Copyright duration in Canada traditionally stuck to the Berne Convention minimum of life of the author plus 50 years, though it appears that this will be extended to 70 years following the signing of the US–Mexico–Canada Trade Agreement in 2018, which requires the duration to be harmonised with that of the United States.

Under the Copyright Act, the moral rights of authors are also protected. These consist of the right to the integrity of the work and the right to be associated as the author of the work.38 The integrity right is infringed if the work is, to the prejudice of the author's honour or reputation, either (1) distorted, mutilated or modified or (2) used with a product, service, cause or institution.39 Certain acts will not on their own constitute a violation (such as a change in location or certain preservation work), whereas, when it comes to paintings or sculptures, mutilation or modification will be presumed to cause prejudice to the author.40 These particularities are unique to Canadian law. As for the association right, it can be limited where 'reasonable in the circumstances'. Moral rights last the term of copyright in Canada, so for the moment 50 years after the death of the author.

While there is no artist resale right in Canada, discussions have been underway for many years to introduce such a right. Nevertheless, the Copyright Act already provides Canadian artists with an exhibition right for works made after 1988. Such a right does not exist elsewhere and so is a particularity of Canadian law that affects the management of artists and their exhibitions. This usually involves paying a royalty to artists if their work appears in an exhibition, and these royalties are set by an artists' rights organisation, CARFAC, with tariffs that are released each year.41 These benefit artists whose works are frequently shown, but can act as an unwelcome cost for museums and galleries putting on shows of contemporary art in Canada.

Outlook and conclusions

As mentioned above, the most pressing matter at the moment in the Canadian cultural sector, as elsewhere, is the coronavirus pandemic. As a result, this matter looms large over all others when considering the future of art law in Canada. It is almost certain that the market for art will slow down, which will inevitably affect exports of cultural property from Canada, while also limiting the transactions for art in the country on the whole. The most notable changes occurred recently – the kerfuffle over the Heffel decision and the subsequent change to the law brought about by the government in 2019, and the favourable appeal for the buyer in Hearn – and the dust has yet to settle on those. There also remains the always-present suggestion that copyright law may be overhauled, and this time in a way that could affect artists and their works, though such a suggestion has been in existence for so long that it is hard to imagine that anything will change, at least not for now. On the whole, the outlook in Canada appears to be 'steady as she goes' while everyone tries to deal with the fallout from the pandemic.

Footnotes

Footnotes

1 Alexander Herman is the assistant director at the Institute of Art and Law.

2 See, for instance, the activities of the Heffel auction house: 'Colville masterpiece shatters artist record at Heffel's virtual live auction', Cision, 15 July 2020.

3 Constitution Act 1867, Sections 91–92.

4 See, generally, the Canada Emergency Response Benefit, which ran until 27 September 2020, and the Canada Recovery Benefit, which will run until 25 September 2021 and, in relation to the arts community, the Canada Council for the Arts' emergency support: https://canadacouncil.ca/covid-19-information.

5 Andrew Willis, 'Creative downsizing: Companies are selling valuable art as they seek to cut office space and raise revenue', Globe and Mail, 16 October 2020.

6 Alexander Herman, 'Art museums need to consider their duty to the public when selling off their works', Globe and Mail, 23 October 2020.

7 See the Covid-19 Emergency Support Fund for Heritage Organizations, operated through the Museums Assistance Program.

8 2019 FCA 82.

9 2019 ONCA 682.

10 See Charlotte Dunn, 'A New Importance for Provenance in Sales by Description? Hearn v. McLeod and Maslak-McLeod Gallery Inc', XXIV Art Antiquity and Law 371 (December 2019).

11 Civil Code of Quebec, Article 2276.

12 Adam Carter, 'Hamilton gallery returns art stolen by Nazis to Jewish family', CBC News, 4 November 2014.

13 See the Canadian Holocaust-Era Provenance Research and Best Practice Guidelines Project (2017), an initiative of the Canadian Art Museum Directors Organization.

14 Ontario Limitations Act, S.O. 2002, c. 24, Sections 4–5.

15 id., Section 15(3).

16 Civil Code of Quebec, Articles 922, 2911, 2917 and 2919.

17 White v. Galerie Samuel Lallouz 2018 QCCS 874.

18 See, for example, Ontario's Arbitration Act, S.O. 1991, c. 17, and Quebec's Code of Civil Procedure, Book VII: 'Arbitrations'.

19 Ina Jahn, 'Loan Versus Gifts: Determining the Donor's Intention', (2007) XII Art Antiquity and Law 81.

20 Alexander Herman, 'Loan or Gift Revisited: Determining the Donor's Intent (Once Again)', (2011) XVI Art Antiquity and Law 317.

21 See, for example, Ontario's Sale of Goods Act, R.S.O. 1990, c. S.1 as an example: Sections 13–15. Note, however, that the Ontario legislation uses 'conditions' or 'warranties' rather than the more general 'terms' utilised in the English legislation.

22 See Harlingdon and Leinster Enterprises Ltd v. Christopher Hull Fine Art Ltd [1991] Q.B. 564 and Drake v. Thomas Agnew & Sons [2002] EWHC 294 (Q.B.).

23 See Charlotte Dunn, 'A New Importance for Provenance in Sales by Description? Hearn v. McLeod and Maslak-McLeod Gallery inc', XXIV Art Antiquity and Law 371 (December 2019).

24 The Cultural Property Export and Import Act, R.S.C., 1985, c. C-51 and the Cultural Property Export Regulations, C.R.C., c. 449.

25 The Canadian Cultural Property Export Control List, C.R.C., c. 448, updated 16 January 2020.

26 The Cultural Property Export and Import Act (CPEIA), Section 11.

27 id, Sections 29–30.

28 Heffel v. Attorney General of Canada 2018 FC 605, overturned on appeal in Attorney General of Canada v. Heffel Gallery Limited 2019 FCA 82.

29 CPEIA, Section 33.

30 Alexander Herman: 'Court decision on Caillebotte export rocks the boat', Institute of Art and Law (blog), 4 September 2018; 'Caillebotte storm is quelled, twice over', Institute of Art and Law (blog), 17 April 2019; 'Caillebotte painting shines light on woefully out-of-date rules', Financial Post, 17 September 2019.

31 Alexander Herman, 'Caillebotte painting shines light on woefully out-of-date rules', Financial Post, 17 September 2019.

32 CPEIA, Section 37.

33 Article 7(b)(i) of the Convention.

34 1998 NSCA.

35 CPEIA, Section 36.1.

36 Canada's Status of the Artist Act, 1992, c. 33; Quebec's Act Respecting the Professional Status of Artists in the Visual Arts, Arts and Crafts and Literature, and their Contracts with Promoters, Chapter S-32.01; Status of Ontario's Artists Act, S.O. 2007, c. 7, Schedule 39.

37 Law Society of Upper Canada v. CCH Canadian Limited [2004] 1 S.C.R. 339.

38 Copyright Act, Sections 14.1, 14.2, 17.1, 17.2, 28.1 and 28.2.

39 id., Section 28.2.

40 id.

41 CARFAC-RAAV Minimum Recommended Fee Schedule.

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