In a consultation Tiger, Somerfugl and I had with a lawyer today, he assured us Canada’s Bank Act and privacy laws protect the rights of all Canadians.
Because Canadian laws have not been amended to accommodate FATCA, he advised us there is no basis for a lawsuit now, but there may be in the future if the government changes the laws or if banks don’t adhere to the current Bank Act or privacy laws.
The lawyer made an excellent suggestion that we contact Jennifer Stoddart, Privacy Commissioner of Canada, asking for her support and assistance in ensuring these laws are not changed to accomdate FATCA.
He said Ms. Stoddart is an “ardent” advocate of privacy rights for Canadians. He said Ms. Stoddart not only looks at rights under existing laws, but also advises government on what laws relating to privacy should and shouldn’t be enacted.
Based on the Privacy Commissioner’s website, it seems this would be the best address to write:
Ms. Jennifer Stoddart, Privacy Commissioner
112 Kent Street
Place de Ville
Tower B, 3rd Floor
Ottawa, Ontario
HK1A 1H3
Their website states they do not accept complaints by e-mail, but I don’t know if that applies to submissions of this nature
Office of the Privacy Commissioner of Canada
Finally, the lawyer encouraged us to maintain pressure on Canadian politicians to prevent changes to Canada’s Bank Act and privacy laws.
@Blaze
Was this the lawyer I recommended in Vancouver? Jennifer Stodart has crictized FATCA already so I think it would be a good move to follow up with her.
@Blaze and @tiger,
Thanks for the update on your meeting and encouraging us to get busy on our latest assignment. I’m on it.
@Tim
Yes, it was the lawyer you recommended.
@Blaze, thanks for posting the address
@All, please write to Jennifer Stoddart
Thank you Blaze, Tiger, Somerfugl for doing that! I will work on a letter.
@tiger
VERY GOOD. From reputation I have heard that that lawyer is not someone want to face off against in court. I believe whenever they do lists of the top lawyers in Canada he is always in the top 10 in all of Canada.
I have also sent several messages to John Christensen of Tax Justice Network who is coming to Canada(for a big Canadians for tax fairness summit) later in the month indicating to him that FATCA is not popular in Canada including among the NDP so he better watch his words if he has anything positive to say about FATCA. I’ll be looking forward to getting a response.
@Tim: Thanks for the info about Ms. Stoddart. It’s good to know she’s already on it. I said to Tiger this afternoon I thought you would have more information about her.
@All: We now know Ms. Stoddart has already criticized FATCA. Let’s all help her do her job of protecting the privacy rights of Canadian citizens and residents by giving our concerns to her in writing.
Here’s a link to an article in Globe and Mail from October 2011 about Ms. Stoddart’s concerns: http://investdb1.theglobeandmail.com/servlet/story/GI.20110623.escenic_2073425/GIStory/
@all, If I can get help on writing a letter I will be happy to send her a letter..I am not very good composing letters.
For those of in the EU several members of European Parliament including Sylvie Goulard and Sophie in’t Veld have indicated they intend to challenge the agreement the five EU countries signed with the US and demand EU Parliament approval of any US-EU FATCA agreement. It appears from what I have read that the US and the five EU countries have been negotiating since April 2011 to the detriment of basically anyone else. I will have more tonight.
Curious: any discussion or legal opinion on the Human Rights and/or Charter implications of banks demanding to know their existing customers’ birthplace or discriminating against a specific group of Canadian citizens because of where they born, or where their parents were born?
hey @saddened123 !
I think if you just tell her what you feel about how your privacy and banking will be affected, that will be a good personal contribution to the impact of having a group of letters sent.
: )
@wondering; that’s a good question. It would mean that for example, dual US-Canadians would be treated differently.
@Wondering
There was discussion regarding Human Rights and Charter implications, but as Blaze said in the original post, at this stage because Canada nor its banks have signed onto FATCA, nor changed any of our laws to accommodate FATCA, there is no law suit. Basically, the lawyer is stating that we must wait to see what either the government does, or the banks do before we can make the determination if anyone’s charter/human rights are being infringed upon.
@tim, interesting – hadn’t thought about the effects if a small group of EU members signed and the others didn’t. I don’t know much about how the EU works when an issue arises like this one. With a common currency, and the flow of people moving and working across borders – what are the special implications of FATCA in that context?
If we could somehow connect more widely and internationally, perhaps we could understand more of what was going on elsewhere – and establish more connections with others trying to do the equivalent in their countries of residence. So far, when I think about past posts, it looks as if we’ve got multilingual speakers of English, French, Spanish, Portuguese, Mandarin/and/orCantonese, Hindi possibly?, and not sure ….? Could there be a more dedicated international thread?
@Brockthebadger, I will give it my best shot!!
@Wondering: Despite the fact there are no grounds for a lawsuit now, I plan to follow up to the reply I received from CBA and let them know I have consulted a lawyer and that I fully expect all my rights as a Canadian citizen to be protected under Canada’s Bank Act and privacy laws now and in the future.
I will also let them know that if my rights under Canadian law are not fully protected and respected by my financial institution, I and others may pursue legal action against them in the future.
If instead, the government changes the law to allow banks to comply with FATCA, any lawsuit might be against the government. So, I will also (again!) be writing to Flaherty and stressing it is important he make a clear statement (Soon!) that Canadian financial institutions are expected to adhere to Canadian law and that Canadian laws will not be changed to accommodate demands of a foreign government.
I found the lawyer to be professional, ethical and understanding. I think Tiger and Somerfugl felt the same, although I can’t speak for them.
Rather than currently taking on our case and charging us legal fees, the lawyer cautioned us “Don’t lawyer up now.” That was actually a relief because I don’t think any of us want or need the financial, personal or emotional stress of doing that right now-especially if it would be premature.
@Blaze
I agree, he was professional, ethical and understanding.
I think it is a great idea for you to follow up with CBA that we have consulted a lawyer and also with James Flaherty’s office. A day or so ago, when I mentioned that I had not received any response to my letter from Andrew Saxton, my MP, I think it was Tim that suggested I write to John Weston. Mr. Weston is MP from the municipality that borders my area. I think I will send a letter to him and also mention that we expect our government to adhere to privacy laws for all of their citizens.
@tiger, Blaze, et al
It sounds like you received excellent and very ethical advice. It’s good to have brought this to the lawyer’s attention because now it’s on his radar – due to his profile and specialty, other US-born Canadians may contact him as well.
If banks actually begin to discriminate against US-born Canadians, there will be a critical mass of people which could enable some kind of class action suit – which would be more cost effective.
If five hundred people participated with a retainer of $1,000 per person (comparable to a years cross-border accounting fees) that is a starting war chest of $500,000 to fund a Charter challenge.
@Blaze, Tiger, et al, I also agree the lawyer was ethical and gave us good info. I will also be writing to Ms. Stoddart, the CBA, and again to Flaherty, my MP and anyone else I can think of.
@ Tim: Thanks for the info about the Tax Justice Network.
@Wondering
Great idea re the potential for a class action suit. It would be $1,000 well spent as far as I am concerned. As you say alot less than filing a bunch of tax returns that most of us feel we have no obligation to file.
@somerfugl, tiger
I suspect the fact you were consulting with the particular lawyer you were might scare the shit out of Canadian Bankers Association as the lawyer I recommended you to is perhaps the most celebrated human rights lawyer in Canada.
Overall I think we had a pretty productive week here at IBS.
May I suggest including testimonials of your Canadian spouses (or parents or children)? Because it profoundly affects their accounts, if you have signing authority or have joint accounts with non-US-persons. Why should non-US-persons suffer, just because they are related to a US-person as they have no obligation to the USA?
@All – this is a GREAT post and great comments. I will be writing everyone – some of them again. I never have heard anything back from Flaherty or my MP, only the PM’s office. Thanks Tiger, Somerfugl, Blaze and Tim for taking the lead on consulting a lawyer.
Question: I know that the main problem facing many of you is that you thought (rightly) that you had lost US citizenship upon taking up Canadian citizenship before 1986 or a similar date. I imagine that this problem is not just unique to Canada: anyone who naturalised in the UK, France, Ireland before this date, etc would also likely be in the same boat.
I imagine that those who naturalised in countries where you have to explicitly renounce citizenship first like Germany or Denmark had to actually get a CLN and renounce citizenship first. Did this retroactive Supreme Court case which involuntarily restored citizenship apply also to people who even explicitly renounced citizenship? I ask merely because I have not heard any mention of this either way. I imagine that if you have a CLN in hand that this law had no effect, but, then again, this is the US government that we are talking about..? I can’t think of any other citizenship from an industrialised country that is so hard to get rid of 🙁
@Don Pomodoro
You state: “did this retroactive supreme court case which involuntarily restored citizenship, apply also to people who explicitly renounced citizenship”.
What case do you refer to? I believe a Vancouver lawyer, stated, that obtaining citizenship pre 1986, resulted in the loss of U.S. citizenship. I am not aware of a Supreme Court case restoring citizenship.