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????
Here is a bit of an overview about the Charter and federal and provincial human rights commissions. As this explains, the Charter “applies to governments, but not to organizations, businesses or people. It also protects the rights of all Canadians from infringements by laws, policies or actions of governments, including authorities such as the police.”
CHRC-CCDP: How Are Human Rights Protected in Canada?
That is why if the government changes the laws to accommodate FATCA, we may have grounds for a lawsuit against the government (but not against the banks).
http://www.chrc-ccdp.ca/eng/content/what-discrimination
For legal action against banks or credit unions, my understanding is there first must be action by them that violates one of the existing banking, human rights or privacy laws.
Someone said provincial Human Rights Commissions have not been helpful.
That could be because banks don’t fall under provincial Human Rights Commissions. They fall under the Canadian Human Rights Act and under the jurisdiction of the Canadian Human Rights Commission. Credit unions fall under provincial laws (see below)
Canada’s Human Rights Act provides protection from discrimination based on national or ethnic origin and other grounds.
http://www.chrc-ccdp.ca/eng/content/what-discrimination
So, if someone has experienced discrimination from a bank, they would file a complaint against the bank with the Canadian Human Rights Commission. I don’t know if anyone has contacted CHRC about FATCA.
As I mentioned, credit unions fall under provincial jurisdiction. (Please don’t ask me why they fall under different jurisdictions. I don’t know.) In Ontario, national origin and citizenship are both protected grounds. So, if someone has experienced discrimination from a credit union, he or she would file a complaint with the Ontario Human Rights Commission. I should forewarn you, OHRC is well known for a huge backlog of cases that often take forever to resolve.
I don’t know what the Human Rights laws are in other provinces, but people in those provinces or territories could probably find out through on an on-line search.
In terms of privacy laws, again Privacy Commissioner of Canada governs banks. Privacy Commissioner of Ontario covers credit unions in Ontario. Again, I don’t know if other provinces have privacy laws or commissions, but if you do, they would cover your credit unions, not the Canadian Privacy Commissioner.
Several of us have been in contact with Privacy Commissioner of Canada, who has advised she is monitoring FATCA and that banks are expected to comply with PIPEDA.
If someone has experienced a breach of privacy with banking or credit unions, they should contact their respective authority. I will mention I had a breach of privacy with medical information recently and was very dissatisfied with the response of Ontario’s Privacy Commissioner. Plus, lawyers (not Joe Arvay in that situation) advised me I had no legal recourse unless I could show I had experienced economic loss.
It is also my understanding that until someone has actually been refused banking services or had an account closed or had similar action taken because of FATCA, there are no grounds for a lawsuit.
So, if someone has had a bank take action based on national origin or citizenship, you may have grounds for a Human Rights complaint. If information has been released from your bank or credit union, you may have grounds for a complaint with the Privacy Commissioner.
Some of us have been in contact with the Privacy Commissioner’s office and she has advised banks are expected to comply with PIPEDA and that she is monitoring the situation.
I am unaware of anyone in Canada who has experienced any action by their banks in banking accounts. Someone (Tortured perhaps?) earlier reported her RRSP investment accounts had been frozen, but later advised that was corrected because the employee had “jumped the gun.”
Investment accounts seem to be treated differently than bank accounts. This seems to go back several years, but has been compounded by FATCA. Perhaps someone with better knowledge than I have could speak to that.My knowledge of investment accounts is far too limited for me to feel comfortable commenting on that in any way.
As I understand it from Joe, if Canadian banks violate the laws, there may be grounds for a lawsuit against the banks. If the government changes those laws, that is when there may be grounds for a Charter challenge against the government.
I understand that many people want to find a lawyer who will launch a lawsuit now. I hope an ethical lawyer would give an honest opinion of how likely a lawsuit would be to succeed and people can make an informed decision from that.
As I said in my post at Sandbox and which Calgary411 cross posted here, I personally prefer to continue to work with Joe Arvay, but I respect that others have different views on that and want to take action now.
Once again, I will again state that I am not a lawyer and nothing I have posted is intended as legal advice.
@ Petros re.”Gov’t of Canada told Eritrea”
I spoke with a lawyer at Democracy Watch and posed the question,”If the Canadian government
has refused to give in to the Eritrean Governments demands,does this not establish a precedent for
handling the American Government demands of our Canadian citizens afflicted with US Personage.
He replied “Governments do not operate on the principle of “precedent”
it’s more of a give and take negotiation. For example: You agree to sign the IGA and we’ll approve
the Keystone XL pipeline. All’s fair in love and war,so they say. We’re the collateral damage.
@All
A timely new article from Robert W. Wood at Forbes that is just waiting for our comments:
What To Say When (Not If) Your Offshore Bank Asks, ‘Are You Compliant With IRS?’
Here is one of the first comments on the article, followed by Wood’s response:
Unfortunate that Mr. Wood himself seems to have just about thrown in the towel over FATCA, a considerable climb-down from several months ago – at least he still acknowledges the existence of a “movement”. I suggest that we get over there and remind him that the movement against FATCA is not at all waning, but in fact is just gaining its sea-legs and will be around for a long, long time.
Since this very controversial and important class-action suit thread began, I think a number of us, myself included, have really had to wrestle with the questions of if, when, where and how concerning next steps in protesting, launching suits or self-immolation on the front steps of Parliament Hill. I too have now come around to the idea that ANY action that garners more attention and discussion is indeed better than doing nothing, especially since time is no longer on our side. The powers that be are already winning by stealth and we need to counter that with the biggest, loudest, in-your-face protests or legal actions we can muster.
Meanwhile, more food for thought (love her name – it’s perfect):
Is Any Publicity Good Publicity?
By Veronika Noize, The Marketing Coach
Calgary 411
I have contact several lawyer and unless you use them a lot they do not want to be helpful. USA tax lawyer are not allowed to help in avoiding FBAR/FATCA.
In addition Calgary with what Mr. Wood just wrote, would you consider a beat the system approach.
Borderbaby the ability to cutoff Canada from US capital market is the big stick. That is why most Western Governments are surrendering to Uncle Obama.
Blaze
Will Avery be able to help on brokerage accounts.
Does anyone have a close enough connection to a lawyer to answer the question on transfer agents. (Computershare Canada)
If Canada will not enforce IRS penalty on Canadian citizen. Can they they penalize you for a w8ben which claims you are not a US persons under IRS rules.
Here is a reply from Abby Deshman at CCLA:
George III,
Please stop asking me if I want to consider a beat the system approach. As I’ve said previously, I don’t want any kind of a work-around; I want Canada to guarantee the same rights for my Canadian-born son as those any other Canadian has, including a Canadian Registered Disability Savings Plan held for him in a Canadian bank.
(…even though by his birth to me he is defined by the US a citizen of their country — though never registered with that country, never lived there, never had any benefit from that country — and, insanely, has no way for a renunciation of ‘supposed US citizenship’ on his behalf by a parent, a guardian, a trustee, even with a court order).
So, if the time is not right for legal action, but everyone agrees we need to get louder, then lets get louder.
@ All, any suggestions on how to get louder?
@Deckard, Lesperance only cares about making money off frightened ‘US persons’ who think they have no choice but to bend over. He doesn’t respect or applaud our anti-FATCA movement, but is only paying lip service. I personally am done discoursing with him, and won’t be responding to his latest ‘comply or get screwed’ message. Time’s a wasting.
Forbes thought for the day, is more meaningful than his post if you ask me:
““ The real measure of your wealth is how much you’d be worth if you lost all your money. ”
— Anonymous
@ WhiteKat
University law schools , university students, churches and synagogues. Independent radio stations, libraries, marches, wear stop FATCA shirts and hats, bumper stickers, subway ad signs, ads on buses, street preformers, picketing , unions, occupy bay street, idle no more., polls at subway stops, bus stops. Tv ads, radio ads.
Just off the top of my head.
(excuse my spacing ,I’m computer illiterate.Among other things we wont go into)
@ Petros re:”Gov’t of Canada told Eritrea”
I spoke with a lawyer at Democracy Watch and posed the question “If the Canadian government
has refused to give in to the Eritrean governments’ demands, does this not establish a precedent
for handling the American governments demands of our Canadian citizens afflicted with US
Personage.
He replied “Governments do not operate on the principle of “precedent” it’s more of a give and
take negotiation. For example:”You agree to sign the IGA and we’ll approve the Keystone XL
Pipeline. Eritrea obviously had nothing our government was interested in so they came out
smelling like a rose. All’s fair in love and war,so they say. We’re just collateral damage.
(I hope this reads a little better)
I give up !
i talked to a friend of mine who is a writer for a weekly newspaper in a western canadian ski resort town. he has spent a few hours reading this website and will be pitching his editor monday to see if they can do a story on FATCA. this paper has a fairly large readership in the town it is located and in the nearby large metro center.
will keep posted when i know more
have also looked at buying ad space in this paper but for a 1/4 page it is over $1,000 which is a bit out of my budget but i have a couple other local papers to talk to as well. they just don’t have the readership the one my friend works at does
i also talked to 2 lawyers who go to the same gym that i do and while they don’t have the expertise they are willing to spread the word to the younger lawyers they are in touch with
@ Border Baby
Try not hitting “return” when you are typing into the comment box, unless you want to start a new paragraph.
@ All
Speaking of lawsuits here’s someone who intends to sue the IRS (no idea yet what the background to this story is). Mr. Ewart sure seems determined to not be pushed around.
“Ladies and gentlemen, we will not be bullied by an out-of-control government agency, including the IRS, and have issued them our own ultimatum with a “Notice of Intent To Sue the IRS.”
http://www.newswithviews.com/Ewart/ron130.htm
What about hiring a pr firm to issue press releases? That’s a great way to get publicity. I’m also willing to stand on the corner of the street handing out brochures and dropping them into mailboxes. I’m willing to design buttons and posters and anything else we need. This all takes money of course. Can we start a publicity fund?
@WhiteKat, all
Want to turn up the volume? Protesting at US consulates.
@bubblebustin,
I was going to post the same suggestion. This idea was brought up by one of our Brockers at the Toronto protest in November.
Perhaps we could kill two bird with one stone and issue a press release stating our intent to sue the banks lol
@ Gwen
Our street corners are at -26C right now and all our mailboxes are at the post office so there’s no dropping anything there without paying for stamps and envelopes. That’s why I went the newspaper ad route. I’ve been leaving Alert messages on the community bulletin boards for months too. We have talented people here who can write excellent press releases and have done so BUT are you saying it would take a PR firm to make sure the releases actually get published? If that’s the case I’m all for that idea, even if it costs a bit. We have to get more exposure. I still hate the idea that people will have to be hurt before legal action can be taken. It just seems so wrong to me. If you see an accident is about to happen, you shouldn’t hold your shout until after it does.
@Gwen, LOL. First we need to find a lawyer! I sent out a few emails to lawyers I found on the internet, plus one lawyer that I know of personally.
@ Em Technology hates me.I plan to build an earthship and join Freemen on the Land when my life returns to normal.Besides being computer illiterate I believe I failed typing in highschool. I must have done something very bad in a previous life for the God’s and the American’s to conspire against me.
@ Border Baby
You are doing just fine. It’s the U.S. government which is very, very bad. You and all of us deserve a normal life!
I thought of picketing in front of the US counsels but is that allowed?
What ever is decided I am in….I am isolated up here in no wheresville. it is minus 11 right now…a little balmy from the last few days. Sticking by the computer (no fireplace) and trying to makes sense and decisions…Credit unions, travelers cheques, buried treasure. what to do.
Banks are not governed by the Charter. However as Federally regulated industries they are regulated by the Canadian Human Rights Act, and it has the force of law. Discrimination based upon nationality or national origin are certainly prohibited. A lawyer conversant with Human Rights litigation, not a Constitutional lawyer, is called for.