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Immunity from Seizure for Foreign Art – Update

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Immunity from Seizure for Foreign Art – Update Aquilina Law August 17, 2021

Immunity from Seizure for Foreign Art – Update

[This article is an update to our last article, “Art Law: Immunity from Seizure for Foreign Art in Canada” available here.

Canadian museums, art galleries and other cultural or educational institutes rely on the provincial government for the protection against seizure of international works of art and cultural objects. This sort of immunity from seizure is a government-backed legal guarantee that works of art or cultural objects lent from abroad for temporary exhibition will be returned to the lender and will not be handed over to a third party claiming rights of ownership or other rights. There is no Canadian federal statute governing indemnity from seizure and therefore this topic is provincially regulated. Only five Canadian provinces have laws that grant such protection: Ontario, British Columbia, Manitoba, Alberta and Quebec.

In 1978, the Ontario government introduced the Foreign Cultural Objects Immunity from Seizure Act as recognition of the positive cultural impact that works of art and objects from abroad bring to the province and the need to reassure foreign owners that their property will be safe from third-party claims while in the province. That statue was recently repealed and the Foreign Cultural Objects Immunity from Seizure Act, 2019 (the “2019 Act”) was enacted (although it has not been yet been brought into force).

The former Foreign Cultural Objects Immunity from Seizure Act stated: When any work of art or other object of cultural significance from a foreign country is brought into Ontario pursuant to an agreement between the foreign owner or custodian thereof and the Government of Ontario or any cultural or educational institution in Ontario providing for the temporary exhibition or display thereof in Ontario administered, operated or sponsored by the Government of Ontario or any such cultural or educational institution, no proceeding shall be taken in any court and no judgment, decree or order shall be enforced in Ontario for the purpose or having the effect of depriving the Government of Ontario or such institution, or any carrier engaged in transporting such work or object within Ontario, of custody or control of such work or object if, before such work or object is brought into Ontario, the Minister determines that such work or object is of cultural significance and that the temporary exhibition or display thereof in Ontario is in the interest of the people of Ontario and notice of the Minister’s determination is published in The Ontario Gazette.

While the 2019 Act will offer the same protection against commencement of proceedings and the enforcement of remedies against foreign art exhibited in Ontario, it no longer requires the Minister to determine such art’s cultural significance and interest to Ontarians in order for the protection to apply. Instead, the 2019 Act outlines two requirements: (a) the work or object is from a foreign country and is brought into Ontario pursuant to an agreement between the foreign owner or custodian of the work or object and the designated institution providing for the temporary exhibition or display of the work or object in Ontario that is administered, operated or sponsored by the designated institution; and (b) the prescribed requirements are met.

As the 2019 Act has not yet come into force, and any prescribed requirements will be provided in the accompanying regulations once it does. Additionally, a designated institution

[1] must provide reports to the Minister, if required to do so by the regulations. It is yet to be seen whether the requirements of “cultural significance” and its “interest to the people of Ontario” found in the prior Act will be considered in the incoming regulations. We do know however that a cultural object created in a foreign country may be of “national importance” or “outstanding significance” to Canada.

[2] This could potentially influence the drafters of the regulations.

We will keep our readers informed of any further updates.

[1] A designated institution means an institution designated by the regulations under the 2019 Act. [2] As determined in Canada (Attorney General) v. Heffel Gallery Limited (see our article, “Caveat Venditor: Exporting Cultural Property from Canada Is Not as Simple as It Seems” published in the Art & Cultural Heritage Law Spring 2019 Newsletter of the American Bar Association’s Art & Cultural Heritage Law Committee.

Article by Martin Aquilina with assistance from Andrea Parodis

This article is for informational purposes only and does not constitute legal advice. If you wish to seek legal advice, contact Martin Aquilina today.

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