In the comments to our post about launching a class action lawsuit against TD Bank, we learned that a constitutional lawyer Joe Arvay does not believe it is time to launch a lawsuit, but in his opinion it would be more propitious to wait for an IGA between Canada and the United States. Another lawyer says that it would not be good to launch a conspiracy lawsuit based upon “intent” alone, as Gwen reports:
I just spoke to my friend who is a lawyer and he said even with their stated intent to comply with FATCA in the absence of an IGA, no case can be brought until they actually do implement the policy. Intent is not a crime in the eyes of the law except in the case of criminal intent such as murder. So, as much as I want to slam them with a lawsuit, I think we do have to wait until they implement and then get an injunction to stop them from continuing and then sue them for violation of our charter rights. So damn frustrating!
[I]ntent is a mental process. Suppose I intend to harm someone, but I do nothing to fulfill my intent. The law is not broken. But conspiracy is more than that. If I hire a hitman to kill that person, I’ve committed conspiracy to commit murder. The banks have hired FATCA officers with the sole purpose of implementing a procedure whereby they can systematically deprive Canadians of their rights. This is far beyond intent. This is spending money to pay the salaries of the hitmen, the Delores Umbridges.
Clearly, there are grounds for launching a conspiracy case already. This would no frivolous lawsuit. We have people whom the IRS has so frightened that they have lined up as sheep for the slaughter–some by paying tens of thousands to the bad shepherds, the cross-border lawyers and accounts, some through paying taxes and fines to the IRS (such as paying huge capital gains taxes on the sale of their Canadian homes), and some have become whole burnt offerings on the altar of OVDP. All of this is happening because the banks have been conspiring to take away the privacy of Canadians and are actively implementing systems whereby they can send private banking information to a foreign and hostile government (i.e., the IRS).
Folks, I am behind launching a class action suit. But if its going to happen, in my view it really has to have the support of those of you who are still so-called “US persons” or who are responsible for US person dependents. I have only a flimsy reason to put add my name to a class action lawsuit–I possess a get out of jail free card (CLN). I am here to write posts and pass on messages from the concerned Canadian who first suggested launching a conspiracy lawsuit. But we need each of you to take the initiative of contacting lawyers around the country who might be willing to launch this lawsuit–either because they have strong sense of the injustice of it all, because they themselves are “concerned clients” of the FATCA, or because they want the fame and glory of having as many as one million clients.
My contact has also responded in the comment stream (ChearsBigEars), including these lines:
I think the time to act is now. I disagree that any particular person needs to have his rights violated.. All of our rights and protections under the Charter are now being violated due to a conspiracy among all the banks to violate our rights and security and disrupt our lives. “Intend” is an interesting word. Intent is a hinge pin in verdicts. It is 100% the intent of our banks to violate the Charter. That in itself is a crime and does damage to our sense of security under the charter of which we are also entitled. Read this carefully. Either the banks are engaging in HATE CRIMES by advocating singling out Americans with Canadian citizenship or they are ignoring that we “are all equal before and under the law and have the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
Sorry if this is too simplified for some to understand but advocating hate and discrimination IS a violation of our rights as a minority in Canada. I posit that if there are some lawyers versed in the constitution that can’t understand simple English (French) then they need to do some soul searching and ask themselves why they are even practicing “constitutional law” in the first place and what kind of love they have for this country that allows them to even practice and make a living……OR they need to go back to law school.
ChearsBigEars has also asked me to post the following lines:
One other angle to our strategy is to try to destroy publicly the illusion that the banks are truly Canadian anymore. If they want to destroy us then we should go after one of them and relentlessly try to destroy their hard work trying to bullshit the population into believing they are “friendly” or comfortable and we should do this till the day we die. They spend hundreds of millions on public image. Let’s destroy that as best we can as retribution if they sign and even if they manage to twist the arm of the govt to sign an IGA. This is precisely why I suggest that one highly offensive bank be singled out as a target in the same manner as we are being singled out for potential financial destruction. We can fight back or get revenge by doing what we can to ruin its image in any visible vocal but legal way.
Again I’m NOT listening to anyone who says it’s too early or it can’t be won. The government here is negotiating secretly now with Treasury.. We need to preempt this and file a billion dollar suit and issue a press release for the media so that the publicity will bring this to the light of day and enrage hundreds of thousands more duals and bring them to our information sites to rally them.
This will turn into a propaganda war and if we don’t win then the least we can do is destroy the average Canadians image of Canada as a free sovereign country. Canada certainly isn’t what it used to be. Where are the Chretiens that told America to go fly a kite when they wanted us to enter Iraq?
Also if you haven’t moved your accounts out of the transnational banks and into credit unions do so immediately. Credit Unions are the best defense because they do business with members, not “natural persons”.
EVERYONE SHOULD READ THIS FROM CREDIT UNION CENTRAL. THEY ARE SCARED THE WHOLE CREDIT UNION SYSTEM WOULD BE DESTABILISED IF FATCA IS ENACTED so they are begging for an IGA. If one local credit union has a recalcitrant member then the whole system is in jeopardy. Credit Unions do not have the right to close a recalcitrant account because membership in Central is mandatory.
http://bsmlegal.com/PDFs/Central1.pdf
“Canada’s Central Credit Unions request that the IRS consider exempting centrals from FATCA compliance requirements in light of the material role they play to the soundness and stability of the Canadian Credit Union system as liquidity providers to local or natural person credit unions”
Also does anyone remember this:
*****BANK TRANSFER DAY******
http://en.wikipedia.org/wiki/Bank_Transfer_Day
I recommend that all US persons in Canada desert the transnational banks and switch to Credit Unions. Now how do we get the word out on this is we can’t get the publicity that would come with a class action lawsuit????
Petros
It should be noted that brokerage client agreement allow them to be shut down by either party within 30 days. They may send you the physical certificates in the case you do not open another account.
I get back to my question are transfer agent for people who want to own physical certificates of stocks or provincial bonds subject to FACTA?
I think schubert can confirm this as well.
Most of my equity have lots of unrealized capital gains and I probably will hold on for Canadian dividends. I also own Provincial bonds. set up in a bond ladder.
Petros
People may still need brokerage account unless you can live on 1.1% interest rates from Credit Unions.
@All
How about Canadian Tire Financial Services ?
I use them. would they be like Credit Unions?
http://en.wikipedia.org/wiki/Canadian_Tire_Financial_Services
Notice of Caution on Credit Union
The deposit are not insured by the CDIC ($100,000 limit) they are insured by Provinces which have a lot of debt.
They are probably heavily involved in Canadian mortgages and there is a housing bubble in Canada. If there is a retreat in house prices they can be heavily hurt.
Alberta had a housing bust in 1980s after Trudeau National Energy Program and people walked away from their house and sent keys to the mortgage holder even though they had to put down 20% to buy house.
@ George
Just a friendly reminder: it’s FATCA, not FACTA 😉
@ George
Think FATCOW to remember.
I’m no legal expert but does it even make sense from a legal standpoint to talk about “charter rights” with regard to a private business? My understanding was that the charter limits what the Canadian GOVERNMENT can do (e.g. It would be a violation of charter rights if the CRA sent Canadians’ info to a foreign country based on their national origin). When we are talking about private businesses these actions would instead be a violation of anti-discrimination laws. Is this correct?
Attacking the constitutionality of FATCA is basically a right-to-privacy question.
But is it not questionable in constitutional terms that Canada’s government already allows the collection of taxes from American citizens resident in Canada? Doesn’t the Constitution say who has the right to levy taxes? I wonder what the Supreme Court would say if the tax treaty between the US and Canada was attacked on the grounds that the federal government of Canada simply does not have the authority to permit a foreign nation to levy and collect taxes on the Canadian Income of American citizens legally resident in Canada? And there is also the question of the constitutionality of the transfer of sovereignty. Has there ever been a challenge of this nature?
@ Border Baby
“Think FATCOW to remember.”
Or FATCACA…
@All…
I have been reading the comments on the previous thread with interest, and the arguments for or against the class action lawsuit.
Not being a Canadian legal expert puts me at a disadvantage to those that are. I am not totally decided which way I would go, if I were a FATCA tainted Canadian, but slowly coming down on the side of those that advocate for it.
To me, the argument shouldn’t center around the merits or timing of the case, although I understand you don’t want it to be considered frivolous. But maybe, that is not bad either.
The strongest argument for me is the propaganda advantage it might provide. IT DRAWS ATTENTION, and that is what you need to get a more robust debate in Canadian media and in Parliament about the steps the banks and the government are taking to comply with outrageous U.S. demands.
Your mission is simply put, to get America to adhere to ‘international norms’ of taxation policies. Tax on the basis of residency if you must, but keep your grubby hands out of Canadian treasury to feed your ravenous spending habits! Citizenship taxation with FATCA is financial invasion of Sovereign Canadian territory, pure and simple.
As they say, ‘no publicity is bad publicity’, or something like that. You can read that both ways. Right now you have little to none, and that is bad, and if you launch a law suit you will get attacked which may be considered bad publicity, but it is actually good.
People and press will notice, I think.
Right now you are attention starved, and is what is assuring the FATCA freight train momentum success. As I have come to understand, Stealth policy making works. You need some radar ‘lightening up’ the U.S. FATCA drone attacks for the media and the general populous to see it.
Of course you will have naysayers, or those like JE Gutierrez arguing that you are targeting the wrong group with your letter to the Canadian Bankers Association, or they should not be sued.
However, even if that were true, so what? Right now this fight is about getting attention. Your actions don’t have to be meritorious or right on target (I think they are btw) as this is besides the point now. You need pre-emptive media attention which is more than just an advocacy blog or a letter or email of protest here and there. A class action lawsuit might get that where just a letter to the Bankers Association or a few protesters on the curb doesn’t, helpful though they were.
I would certainly consider it seriously. What is to be lost if you have an attorney willing to take the case on a contingency? I think finding one might be the biggest problem you will have, and then having it survive the first calls for dismissal. But even a dismissal action in court gets attention: “Big Banks ask for dismissal of the “fighting grannies” lawsuit in court.” That headline or narrative sells newspapers.
Why should you wait until the U.S Weapons of Mass Financial Destruction are fully deployed to take some pre-emptive action? Are you worried about being labeled “fringe”, “extreme” or whatever label they come up with to be dismissive of your concerns. You are already there, so what is to be lost by this effort?
I am looking for the convincing negatives or arguments that tip the scale away from the attention this action would draw? The attention is a BIG positive in my eyes. I could be wrong, but as a non Canadian I am not about to discourage this action. You are on the frontlines of the fight. Even if you lose, you want to know it was not for lack of trying. Use whatever legal avenues still afforded to you. That’s my “for what’s it worth” opinion.
@vin de table, Merci, for this suggestion. I just got off the phone with a lawyer, though no expert on such matters, who said that this may be a problem: that the Charter of Rights applies to government not to private businesses. Notwithstanding this argument, I wonder how these lines play out:
Are banking accounts and banking privacy not a matter within the authority of Parliament? If it is not, then why is it that the IGA is being negotiated between the government of Canada and the United States?
However I might disagree with that interpretation of the Charter of Rights, this could be the reason that Joe Arvay wishes to start the lawsuits only after an IGA is signed.
Another way of reading the charter is that the person has these rights: period. Not vis-a-vis the government alone, but vis-a-vis anyone who would deprive them of such rights. So the article 15:
If this is so, then how do I get the government of Canada to protect me from the banks depriving me of my Charter rights? By suing the banks in federal court–unless you think a complaint to the RCMP would stop the banks from conspiring against us. Don’t we have the right to the same protection from the government and the law as other Canadians? So what do we do? Complain to the RCMP and if they don’t go and arrest the FATCA compliance officers and the bank CEOs, we sue the government for not providing equal protection?
@petros
interesting thought about getting the RCMP to go after the compliance officers and banks CEO’s
@ just me
you bring up some good points esp. the “no publicity is bad publicity’ which i think can be attributed to PT Barnham… over the years i have had some exposure in the media both good and bad and when the bad has come out the groups i have been involved with always look back to this phrase which i believe holds true in this situation. that being said it is easier to talk about it than it is (unless you do something really really stupid) to get the major media to pick it up and do a story about it
The way I understand this from Joe is if the banks violate Canadian banking, human rights and privacy laws, there may be grounds for legal action against the banks. That would not be a lawsuit under the Charter.
My further understanding is, (as the lawyer explained to Petros), the Charter applies to government–not to private businesses. So, if the government changes any of the above laws to allow the banks to comply with FATCA, there may be grounds for a Charter challenge against the government.
@Petros
Those are interesting connections you make. But I wonder, is it simpler than that?
If you walk into a shop or a bank and they say “you can’t buy our products because you are Aboriginal/Armenian/Hindu/born in the US” or whatever, you can just file a complaint with a provincial human rights tribunal. But you have to have been harrassed or denied a service or treated unfairly, it has to be a protected grounds of discrimination (citizenship and origin are), and you will need proof. Correct me if I am wrong, this is my understanding
@Old and Simple, re;
..”Doesn’t the Constitution say who has the right to levy taxes? I wonder what the Supreme Court would say if the tax treaty between the US and Canada was attacked on the grounds that the federal government of Canada simply does not have the authority to permit a foreign nation to levy and collect taxes on the Canadian Income of American citizens legally resident in Canada? And there is also the question of the constitutionality of the transfer of sovereignty…”
Good questions, and they reminded me of questions I have posed http://isaacbrocksociety.ca/fatca/comment-page-29/#comment-419533 , but which have not been explored;
I would add questions – which I have no way of even beginning to answer on my own:
Does the Canadian federal government even have the authority to sign ALL Canadian citizens and taxpayers to be bound by FATCA forever – INCLUDING those in QUEBEC and First Nations and Aboriginal peoples in Canada? We have spoken of the sovereignty issues that FATCA poses for Canada as an autonomous sovereign nation, but, what of our internal domestic sovereignty issues? Taxation is a very important sovereignty issue, and Quebec has a unique position re taxation in Canada. Then there is the potential conflict with First Nations and Aboriginal sovereignty re taxation within Canada.
Does the federal government have the power to bind Quebec to FATCA? And FATCA will have provincial repercussions too. What do the other provinces say about FATCA?
@Blaze, Then does Mr. Arvay have a suggestion about how to get the government to protect citizens whose rights the banks are conspiring to violate? There must be a way, if it is not a charter challenge. He is right that we don’t need to challenge a law on the books in the form of a charter challenge. But there must be a way to get the Federal government to enforce the Charter and existing tax and privacy laws in the face of bank trying to dismantle them. What is that way?
@ Petros,
Re your question about the extent of s. 32(1) of the Charter, there was a Supreme Court decision on s. 32(1) and the concept of an entity “within the authority of Parliament,” in 1990, which as far as I know (I could be wrong) is still relied upon today in making the determination.
McKinney v. The University of Guelph [1990] 3 SCR 229
Another reader shared with me the following angle:
@pacifica, With this in mind, the Federal Government exercises jurisdiction over Eritreans in Canada extorting Eritrean expat taxes but refuses to prevent the banks, agents of the United States, from aiding the extortion of US expat taxes.
@vin de table, I recall that attempts to get the provincial human rights commissions to do anything have failed.
Petros
Brokerage firm may fall under provincial SEC rules. So would a Canadian wide lawsuit solve the problem?
I have seen paperwork that they can cancel any brokerage account withing 30 days. So I still would like to know from a lawyer the answer to question. I have talked to a few Canadian based lawyer on thin and they do not seem to want to be helpful. Other then a will I never have used a lawyer.
Can you get a lawyer to answer question.
Are transfer agent for people who want to own physical certificates of stocks or provincial bonds subject to FATCA?
Computershare Canada is by far the largest transfer agent. It is a Canadian subsidiary of an American company and they keep their records in USA. When you call them up they have that on their telephone system. By the way TD Bank is handled by the American.
What about a lawsuit for the pain and suffering these people are living with right now? I have to sit here and watch my wife going downhill with a depression that has come from this. Do they have any idea of the incredible effects of this right now? I would personally like to sue the Canadian government and the banks for the damages felt by my immediate family and especially for my wife who is now finding it hard to even function in her own life because of this……. Most people have never had to deal with the stress and yes, others have sued for less. If I could, I’d sue right now!!!
Petros/Blaze
edit of previous post
Brokerage firm may fall under provincial SEC rules. So would a Canadian wide lawsuit solve the problem?
I have seen paperwork that they can cancel any brokerage account withing 30 days.
I have talked to a few Canadian based lawyer on things and they do not seem to be helpful. Other then a will, I never have used a lawyer.
anyone
Can you get a lawyer to answer the question.
Are transfer agent for people who want to own physical certificates of stocks or provincial bonds subject to FATCA?
Computershare Canada is by far the largest transfer agent. It is a Canadian subsidiary of an American company and they keep their records in USA. When you call them up, they have that on their telephone system. By the way TD Bank is handled by the American firm.
By the way Petros your CLN and 8854 may be sufficient for now. The USA may then ask that FBAR has to be completed to own brokerage account with USA assets (FATCA II).
@GeorgeIII, your questions are too technical for me. I don’t have access to lawyers to have your questions answered. As for the FATCA II, by that time the statute of limitation will have come and gone. They only have six years to nab you on FBAR. It’s almost been 3 years already since my expatriation date.
Blaze maybe you can ask that question of a lawyer,
Petros it may 3 year before statue of limitation runs out in USA. But they may demand in the future that to trade in US equity, foreign brokerages need to see an FBAR completed besides the 8854 (is this the right form). I have seen online request from Canadian brokerage firms for people to submit Name, addresses and work history to get real time quotes from NYSE. I did not sign up, not interested in US equity.
In addition I think a beating the system thread, should be put up with a sticky.
Maybe a sticky thread can be put up discussing investment not though FI (owning rental properties, bond ladders, etc).
George III, can you ask that of a lawyer?