Overview

The information in this guidance is not intended to take the place of legal advice. In the event of any conflict between this document and the Foreign Cultural Objects Immunity from Seizure Act, 2019 and its regulations, the Foreign Cultural Objects Immunity from Seizure Act, 2019 and its regulations prevail.

Part A of this document provides guidance on how to apply for designated status under the Foreign Cultural Objects Immunity from Seizure Act, 2019 (the “Act”), and Part B outlines the ongoing requirements for institutions once they have become designated.

Context

Ontario's museums, art galleries and other cultural institutions organize temporary exhibitions that include international works of art and other cultural objects borrowed from foreign owners or custodians. Such exhibitions provide unique cultural and learning experiences for Ontarians and facilitate a global exchange of ideas through art and objects.

When Ontario cultural institutions borrow cultural objects from foreign owners or custodians, they may wish (or may be requested by the lender(s)) to protect the objects from potential seizure while they are on loan, for example, in relation to an ownership claim by a third party.

Recognizing the benefit to Ontarians when its institutions display important works of art and other cultural objects from abroad, the Ontario government introduced this Act, replacing the former Foreign Cultural Objects Immunity from Seizure Act, which was first introduced in 1978.

The Act ensures that works of art and other cultural objects from a foreign lender brought into Ontario (pursuant to an agreement between a foreign owner or custodian and a designated Ontario institution for a temporary exhibition in Ontario that is administered, operated or sponsored by the institution) can be protected from seizure if:

  • the Ontario institution is designated by the Minister as outlined below (Part A)
  • the designated institution meets the publication requirements as outlined below (Part B)

Becoming a designated institution involves a one-time application process. If the institution receives approval and is designated by the Minister of Heritage, Sport, Tourism and Culture Industries (the “Minister”), it will not need to apply again unless the designation is removed by the Minister. The Ministry of Heritage, Sport, Tourism and Culture Industries (the “Ministry”) may remove an institution’s designation based on the Ministry’s assessment of the information in the compliance and due diligence reports required by the Act, including the regulation made under it (the “Regulation”), and any other information relevant to an institution’s approval for designation. Failure to meet the requirements in the Act and the Regulation may also result in the removal of an institution’s designation.

Designated institutions are listed in the Regulation posted on e-laws.

The application process is an open, rolling intake period to provide flexibility for cultural institutions to submit an application and become designated at any time.

Part A: Applying for designation

Part A is comprised of three sections:

Section 1: Instructions on the application requirements, process and timelines

Required documents in an application

  1. Borrowing policy
  2. Loan agreement
    • In order for a designated institution to bring a work of art or cultural object into Ontario, there must be an agreement with the lender allowing for the temporary exhibition or display of the work of art or cultural object in Ontario, under the administration, operation or sponsorship of the borrowing institution.
    • The Ministry recognizes that loan agreements may vary depending upon the lenders and the work of art or cultural object being loaned. Upon applying for designation, the institution must demonstrate that loan agreements attest to the legality of the loan — that the lender can, and agrees to, lawfully lend the work of art or cultural object.
    • The application package should include an example of a loan agreement that it has used in the past, or a copy of a standard loan agreement template, where possible.
  3. Applicant information and supporting documents (see Section 3 below)
    • Supporting documents must include:
      • most recent annual report
      • most recent financial statements and,
      • facility report (detailing where the objects will be held before, during and after the exhibition or display).
    • The applicant must also include evidence demonstrating proof of incorporation in the application package that verify the applicant as an institution.
    • If the institution is approved, it will be designated in the Regulation. Once included in the Regulation, the Ministry will send the institution a confirmation of approval, including a link to the Regulation.
    • The institution must follow the requirements as set out in the Act, the Regulation, and guidance materials, as outlined in Part B below, to borrow works of art or cultural objects from foreign lenders.

Section 2: Guide to developing policy and procedures for loans of foreign cultural objects

Policy instructions

The institution’s policy covering the borrowing of works of art and cultural objects may either be a standalone document or part of a wider collections management or loans policy. Institutions can use or update existing borrowing policies to meet the requirements set out in this guidance document.

The following key areas should be addressed in the policy:

  • whether the institution has a written procedure that explains the steps to follow when objects are borrowed
  • legal and ethical issues that the institution considers before borrowing works of art or other cultural objects
  • provenance information that the institution requests from lender(s)
  • circumstances under which the institution carries out further investigations if there are gaps in the provenance or if documentary evidence cannot be provided, including:
    • whether research is broad or restricted to certain periods (for example, between 1933 and 1945 or after 1970)
    • the circumstances under which an organization would choose to proceed with the loan if the history of the provenance of the work of art or cultural object is incomplete
  • who within the organization can sign loan agreements.

The borrowing policy should also include the following general ethical standards for borrowing works of art or other cultural objects:

  • clearly defined conditions under which the borrowing institution accepts loans of works of art or other cultural objects;
  • commitment to maintaining the level of care for borrowed material that is specified by the lender and fulfilling any other requirements to ensure that the works of art or other cultural objects are kept safe and secure; and
  • procedures that comply with the international and national laws, standards, and guidelines, as set out under Section 1 and with the minimum requirements set out below.
Minimum requirements for a borrowing policy
Minimum requirementWhy this is important

Documented research into the provenance of the work of art or cultural object, and any competing claims of ownership.

Should there be gaps in the provenance, or if documentary evidence cannot be provided, then an explanation/documentation of the process the borrowing institution would follow to ensure due diligence should be provided as part of the application process to the ministry.

Documentation may be in the form of a checklist.

The borrowing institution must ensure that the work of art or cultural object to be borrowed has not been either imported or exported in an illicit manner and verify that there are no potential competing ownership claims. Should there be questions, then the borrowing institution should consider not proceeding with the loan.

A fully executed written agreement between the borrowing institution and the foreign owner or custodian before any loan begins, with clear reference to the care standards to be met and other terms and conditions.

A fully executed written agreement between the borrowing institution and the foreign owner or custodian before any loan begins, with clear reference to the care standards to be met and other terms and conditions. The institution will have a formal record of what was agreed to in case any problems arise during the loan period. An agreement between the borrowing institution and the foreign owner or custodian is a condition for protection of the object under the Act.

Stated reason for loan

The institution agrees to not use the work of art or cultural object in a way that goes beyond the purpose agreed with lender.

All loans are for fixed periods and part of a temporary exhibit or display.

Loans must be reviewed at regular intervals so that the institution does not create a backlog of objects.

Appropriate insurance or indemnity coverage held by the borrowing institution for the work of art or other cultural objects while under the responsibility of the institution under the terms of the agreements with the lender (including in transit, if applicable).

The institution can borrow high-value work of art or other cultural objects without unacceptable risk.

Works of art or other cultural objects are never left without insurance coverage while they are being transported.

Up-to-date information on the location and physical wellbeing of work of art or other cultural objects during the loan for the benefit of both the borrowing and lending institution.

Both borrowers and lenders have data on the environmental conditions in which the works of art or other cultural objects are exhibited or displayed.

Works of art or other cultural objects do not get mislaid while in the institution’s care, risking damage to its reputation.

Written record of all loans (e.g., loan agreements, electronic files, web postings) kept by borrowing institution.

The institution can consult the relevant loan file in case a problem with a work of art or other cultural object becomes apparent after it has left its care.

References

Section 3: Application checklist and reporting template

The checklist indicates which documents must be completed and included as part of the application package.

Part B: Ongoing requirements

Requirements for publication on the institution’s website

As outlined in the Regulation, a designated institution must publish information about each work of art or other cultural object sufficient to identify it on its public website for a minimum of:

  1. four consecutive weeks in the six-month period before the work of art or cultural object is brought into Ontario.
  2. the longer of 12 weeks after the date on which the work of art or cultural object is brought into Ontario and the date the temporary exhibition or display ends.

Publishing specific details of the work of art or cultural object before it enters Ontario and during its exhibition supports transparency by providing opportunities for the public to raise questions about the object’s past.

Details on the work of art or cultural object to be included in the information published on the institution’s website should include:

  1. name of authorized lender of the work of art or cultural object (unless lender wishes to remain anonymous)
  2. artist’s name
  3. title of the work of art or cultural object
  4. date of work of art or cultural object
  5. medium and dimensions (material, units of measurement [e.g., cm, in, ft])
  6. inventory number, where applicable (accession/catalog/object/work/specimen number)
  7. details of exhibition dates and locations of work of art or cultural object while in Ontario

Note that the description of the work of art or cultural object should be the same as the description contained in the loan agreement(s) with the lender.

Failure to meet these requirements may result in the removal of an institution’s designation.

Ongoing reporting

Designated institutions are required to submit reports to the Ministry as outlined in the Regulation.

  1. Annual compliance report

    • Under the Act, designated institutions must provide an annual report to the Ministry detailing how it complied with the publishing requirements for the works of art or cultural objects that it borrowed and published information during the previous year. Details must include:

      • a copy of the information published and the dates of publication (can be provided as a screen shot or pdf, for example).
      • summaries of any information requests related to the provenance of published works of art or other cultural objects.
    • The first report will cover the period from the date the borrowing institution becomes designated to the first March 31 following the date of designation. The annual report must be submitted by June 30 following the date of designation if the date of designation is between July 1 and March 31, and no later than the second June 30 following the date of designation if the date of designation is between April 1 and June 30.
    • For example, if an institution becomes designated in November 2021, it will be required to submit an annual report by June 30, 2022 for the period covering November 2021 until March 31, 2022.
    • Failure to meet these requirements may result in the removal of an institution’s designation.

  2. Five-year due diligence report

    • Every five years, every designated institution will be required to provide information to the Ministry on its due diligence procedures for establishing the provenance and ownership of a work of art or cultural object. The report only needs to provide information about the temporary exhibits or displays that were covered under the Act.
    • The following information should be included in each five-year report:

      • documentation (summary) of provenance research conducted, by whom and methods used especially when there are gaps in research or documented evidence is not available. (Please include checklists or other documentation with the report)
      • record keeping practices
      • existing policies/research checklists
      • description of in-house/third party expertise
      • confirmation that the institution has loan procedures that follow current and relevant national or international guidelines
      • examples of loan agreements with foreign owners or custodians and,
      • all questions or contact in relation to information concerning borrowed works or cultural objects published on the institution’s website
    • The institution should also include in the report any changes and/or improvements it has made to its due diligence policies and procedures.
    • The first five-year report will be submitted up to the period ending March 31 in the fifth year after which the institution became designated. The report should be submitted no later than June 30 of that fifth year. For example, if an institution becomes designated in November 2021 it will be required to submit a five-year report by June 30, 2026 for the period covering November 2021 until March 31, 2026.
    • Every subsequent five-year report must be submitted no later than June 30 every five years after the first report is filed. For example, in the previous scenario, the second report would be due no later than June 30, 2031.
    • Failure to meet these requirements may result in the removal of an institution’s designation.

For more information

Please contact the Ministry if you have additional questions on preparing your application to become a designated institution.

Ministry Contact Details: FCOISA@ontario.ca