Spotlight on Judicial Review: Challenging a decision of a government body

Many business and individuals find themselves subject to decisions of government bodies, including administrative tribunals exercising statutory authority, both at the provincial and federal level. These decisions can have a significant impact on the operations and viability of a business.

Judicial review is a procedure by which a court can review certain administrative actions, or inactions, taken by a government body. The decisions of a wide variety of government bodies may be subject to judicial review, depending on the facts and circumstances of a given case. These government bodies include the Canadian International Trade Tribunal, the Canadian Human Rights Tribunal, the Liquor Control Board of Ontario, several provincial human rights tribunals, etc. Decisions of Crown agencies may also be subject to judicial review, as can ministerial decisions, depending on the circumstances.

Recently, lawyers from Conway Litigation successfully challenged a decision of the Canadian Cultural Property Export Review Board on behalf of its client, Heffel Gallery, a Canadian fine-art auction house.

The application for judicial review in Heffel Gallery Limited. v. Canada (Attorney General), 2018 FC 605, concerned a decision by the Canadian Cultural Property Export Review Board to delay the issue of an export permit for a French painting sold by Heffel to a U.K. buyer, on the basis that the painting was of “national importance”. The painting, Iris bleus, jardin du Petit Gennevilliers (1892), was painted by French painter Gustave Caillebotte, and had been in a private Canadian collection for 50 years.

The Federal Court held that the Review Board’s interpretation of “national importance” under the Cultural Property Export and Import Act was overly broad and unreasonable. The Court also found that “[t]here was no reasonable basis for the Board to have concluded that the Painting was of such a degree of national importance that its loss to Canada would significantly diminish the national heritage. The artist and subject matter were not Canadian and the Painting has no connection to the Canadian public or Canadian Impressionism.” Accordingly, the Court quashed the decision of the Review Board and remitted it for a new hearing.

This decision provides much-needed clarity on the scope of the “national importance” criterion under the Cultural Property Export and Import Act, and has implications for auction houses and dealers of fine art who wish to export cultural objects that are controlled by the Act.

Thomas Conway, Owen Rees and Julie Mouris, the lawyers who represented Heffel Gallery, work alongside several other lawyers at Conway Litigation with expertise in public and administrative law. The lawyers at Conway Litigation have represented clients in a wide range of matters, including on judicial review proceedings arising from decisions of the Canadian International Trade Tribunal, the Canadian Human Rights Tribunal, the Court Martial Administrator, the Canadian Radio-television and Telecommunications Commission, the National Energy Board, the Transportation Safety Board of Canada, the British Columbia Farm Industry Review Board, the Minister of Public Services and Procurement Canada, and many more.

For questions regarding the implications of the Heffel decision, please contact Thomas Conway (tconway@conway.pro), Owen Rees (orees@conway.pro) or Julie Mouris (jmouris@conway.pro). If you would like to discuss a potential judicial review proceeding, please reach out to any of the lawyers from our public and administrative law team (www.conway.pro).

Thomas G. Conway is a partner with Conway Baxter Wilson LLP, a law firm practicing exclusively civil litigation and advocacy. Conway Baxter Wilson LLP also provides its clients with advice on litigation avoidance strategies. Tom has a broad and varied trial and appellate practice. He has represented clients in numerous civil jury and non-jury trials, as well as in regulatory, criminal and quasi-criminal cases. Tom has also represented clients in professional negligence cases, class action proceedings involving franchisors, technology companies and regulatory authorities.