Blaze has done some groundwork and written a long comment (see below), explaining in a nutshell what seems to be our current options under the current human rights laws in Canada. My personal take on Blaze’s comments is that it reveals an impasse–it shows how the “pass the buck” system works in Canada. The reason that you can’t take legal action is that nobody wants to take responsibility for what the banks are doing. Apparently, no human rights lawyers are interested either (at least the ones we’ve consulted), not even the Canadian Civil Liberties Association, in litigating against FATCA, not yet–not until the conspiracy to take away rights results in more direct harm.
Personally, I have yet to embrace the idea that we can’t sue the banks or even better, the government of Canada, in the form of Charter challenge. Law is a question of interpretation and challenge. An enterprising and bright lawyer would need to create a niche–a way in which the language of the Charter best suits our situation. The Charter Article 15 promises “equal protection“. What is very clear is that in Canada Eritreans expats have benefited from better protection than US expats have. The government of Canada took a very strong stance against the shenanigans of Eritrea and even expelled one of their diplomats: From the National Post (May 29, 2013):
The expulsion order followed a government investigation that found that, months after Canada had ordered him to stop, the Eritrean consul was continuing to solicit money, some of it explicitly for military purposes.
The scheme was considered illegal because the UN Security Council imposed sanctions on the Eritrean military four years ago over its ties to armed groups in the Horn of Africa, notably Al-Shabab, a regional affiliate of al-Qaeda.
Well, the United States uses Canadian extorted tax revenues to commit drone warfare, killing thousands of innocent bystanders. The United States itself condemned the expat tax of Eritrea. The US citizenship-based taxation has resulted in wide spread misery to Canadian citizens, who have the intrinsic right to the equal protection of Queen of Canada. As pointed out by one reader, we could take the angle that the tax treaty between the US and Canada is actually due for a Charter challenge, for under it, Canadians have had their Charter rights nullified. It is clear and manifest that under this treaty, negotiated by the Canadian federal government, so-called US persons in Canada benefit from less protection under Federal law than do Eritrean expats in Canada. I have within one mile of my house, a US Tax Services office–i.e., a cross-border firm operating a business in Thornhill, Ontario–I can’t imagine that the Canadian government would allow an Eritrean tax firm to offer their services in my community.
But furthermore, many of the so-called “US persons” are not even US citizens by the conventions of international law (see on Dominant Nationality), and therefore, the Canadian government offers less protection to these, their own citizens of dominant nationality, than they offered to Eritrean expats (who may or may not be Canadian citizens). Canada has said that it will not collect taxes from her own citizens: but by negotiating a IGA, they backtrack from this fine position, allowing it to degrade into this sort of situation, in my own paraphrase:
We will not collect taxes and fines from our own citizens, but we will hand over their bank information according to FATCA rules (not because you asked nicely but because you have threatened economic sanctions against our country), and then you (the IRS) can extort as much money from these, our own citizens, as you are able.
In any case, here is Blaze’s excellent and well-researched comment, explaining the current state of affairs regarding the legal recourse available to those in Canada whom the United States is destroying through its FATCA agents, the US banks operating in Canada (i.e., TD, etc.):
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).
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.
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.
Suggest writing to TD Deputy Chsir Frank McKenna. Tell him that systematic banking discrimination against certain Canadians based upon their place of birth is both unlawful and bad for business. Cc him “personally and confidentially” on any TD complaint.
Also, anyone in New Brunswick can write to NB Premier David Alward, who was born in the US and has made public statements of concern about his dual citizen status. Ask him his opinion on FATCA in NB, especially regarding the many NB border babies born in US hospitals due to cross-border medical arrangements. Ask him how he feels about his and his NB constituents’ confidential banking information being sent to a foreign country.
Here is an example of young litigator who has the guts to take a case to the Supreme Court: http://www.youtube.com/watch?v=KKNKHJnpROU
What I want to say is that if Sophie Dormeau is willing to take a weak case (she lost the case: Doré v. Barreau du Québec), how much more should some young lawyer be willing to take our case as high as it takes. I don’t think we should give up. The justice of our cause trumps the conventional wisdom. One has to have the view that this case is unique and therefore the past is not necessarily a guide to what is possible in the future.
I’ve approached a civil liberties group in a European country and once again the experience is the same as the Canadian version – dragging their feet.
All the Canadian links and activities in Switzerland have been communicated. It’s going to be a case that someone’s rights will have to be VIOLATED by a FFI before they’re going to take interest.
@Don, that’s LOL. Swiss banks have systematically closed the accounts of Swiss citizens only because they are “US persons” and their rights have not been violated?
I agree with Petros.
There must be a lawyer out there somewhere willing to take this on. What do we have to lose? At the bare minimum, we will be garnering a lot of attention, which is something we need. A lawsuit against the banks, does not mean we cannot also sue the government when/if an IGA is signed.
hello all
these are the coordinates of Sophie Dormeau
sdormeau@sophiedormeau.ca
http://www.consensusavocats.com/sophie-dormeau-e/
I will email her referencing this site, maybe she will respond and join the discussion
@Petros: To clarify, I did not say “no human rights lawyers are interested.”
In another post, I said Joe Arvay has advised it is premature for action now. He has also advised if the banks violate our rights, we may have grounds for a lawsuit against the banks. If the government changes the laws for FATCA, we may have grounds for a Charter challenge against the government.
I don’t know the position of other human rights lawyers. I have not spoken with any others. I understand other people may want to obtain opinions from other lawyers and pursue legal action with another lawyer now. I personally plan to work with Joe when he feels the time is right. In the meantime, I am aware Joe has quietly done some significant things behind the scenes, which I am not free to share publicly. He has done this at no charge to me or to others.
Today I received a direct e-mail from someone saying: “Joe is incorrect
Forget him! Find any old lawyer who does class actions and lets stop debating this. Let the judge determine it. Lets get this suit started now instead of accepting opinions on whether it is the right way to go or not. Joe isn’t the only lawyer in town.”
Let me be clear. I am not “debating” anything. I am simply sharing information I have learned from Joe and elsewhere and saying what I personally am comfortable with. I trust Joe and his opinion.
Again, I stress that I respect the right of others to consult other lawyers and take whatever action they think is appropriate.
In reviewing the my comment which Petros carried over from another thread, I realized I inadvertently left out the link to information which 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.”
Here is that link. http://www.chrc-ccdp.ca/eng/content/how-are-human-rights-protected-canada
Could one of the administrators incorporate this into my original post in another thread or and into the post which Petros transferred over? Thanks.
@Blaze,
I don’t think Joe is ‘incorrect’, or that we should forget him. When he is ready to take this on, great!
In the meantime, I think it is wise not to have all our eggs in one basket, and instead try to attack this FATCA beast from as many angles as we possibly can – which we have been doing so far with protests, letters to banks, emails to politicians, petitions, articles, radio interviews, distribution of FATCA fact sheets, etc.
If we can find a lawyer who will take this on NOW, why not go for it? What can we lose?
White Kat and All,
It is clear that Blaze respects that point of view:
@Blaze, thank you for these comments. I very much appreciate your contributions because they have helped to clarify the nature of the problem. As for the statement, “Apparently, no human rights lawyers are interested”, I think it is clear that this line is not something you said but a conclusion that I have drawn from your comments (I will make this clearer by rewriting this section). It would be more accurate to say, “No rights lawyers that we’ve consulted”, to be sure. A little rhetorical flourish and we see perhaps better the challenge before us.
As the discussion unfolds, I think that the future shape of a Charter challenge will become more distinct, as though through our “debate”/comments/reports we are adjusting the focus knob on a microscope. In this light, I want again to point out the analogy (and there is such a thing as an analogical argument in law), that Canada protects Eritrean expats from Eritrea, but has failed to protect so-called “US persons” from the US. Thus, we do not enjoy “equal protection”, which is our Charter right, because the Federal Government has signed away our Charter rights and has furthermore allowed the banks to conspire against us on behalf of the IRS. This is the main focus of this post. I think that you and others have provided good evidence that a Charter challenge against the banks is not really a possible avenue, and for that I am very grateful.
We are dealing with such a huge destruction of rights, that some kind of legal challenge must be possible. I think that is the reason for these posts. In this sense, I disagree very strongly with Arvay’s position. Devising and implementing a plan to destroy people is a conspiracy, and such conspiracies cannot be legal in a free country, anymore than Apartheid would be legal here. If the banks decided to implement an Apartheid system and to hire Apartheid officers to construct the computer programs to make it happen, I can’t see them not going to jail.
This much is clear: the banks with the tacit permission of the Canadian Federal government, are implementing a apartheid system to destroy the rights of certain Canadian citizens. The question is not whether anything be done but what is the best way to make it happen.
Regarding engaging Joe Arvay for a FATCA charter challenge:
– this would be an action against the Federal government and its agencies
– if the Government of Canada passed any law or made any agreement that discriminated against a class of Canadian citizens based solely upon a US birthplace, that would be a violation of the Charter
– this would not be “class action” in that is not an action seeking damages – it is seeking to have the IGA judged unlawful and blocked
– don’t expect this to be free or on any kind of contingency basis
– ideally there would be a plaintiffs’ group who would participate in the action and support its costs
– however once an action is launched, it should be easier to recruit Canadians to a plaintiffs’ group. Any Canadian affected by a FATCA IGA would have standing
– if 1,000 plaintiffs spent $500 each that is 1/2 million $ litigation fund
– there would need to be a lead plaintiff, who ideally would be a US born Canadian citizen who was born in the US by happenstance, and never worked or liver there; a Canadian citizen “border baby” born in a US hospital to Canadian parents who returned to Canada asap would be an ideal lead plaintiff
The best way to ensure this moves forward is to make a commitment to participate both financially and with standing (be an affected person) in a plaintiffs’ group. If the action is launched, others will join, notices recruiting other plaintiffs can be advertised, the press will cover it.
@Petros – I agree that their rights have been violated. The point I was trying to make is that legally speaking it’s probably difficult to make a legal challenge until someone’s rights have been violated.
It would be like suing someone for damages before the damage takes place.
I would love to see someone mount a legal challenge before someone’s rights are violated.
Petros, this is not legal advice and I am only passing on a suggestion and some thoughts that might be helpful.
Yesterday some of us had a casual conversation with someone about your suggestions. The person we spoke to suggested that a Charter challenge at this time would not be helpful for the reasons already mentioned, but that an injunction against the bank(s) “might” be a better approach. The injunction would have to be requested by a US person and there could be costs and liability to the requester.
It appears that for an injunction to be successful there has to be real risk of harm.
There is harm from loss of privacy etc. but there is also quantifiable harm involving actual loss of monies that must be paid to IRS because of the inappropriate disclosure of account info by the bank. This would mean that the US person would have to be IRS non-compliant with a real, obvious risk that disclosure to IRS would result in some penalties or costs (e.g., because of ownership of some toxic mutual funds). Perhaps the “perfect” person would be someone who all in the civilized world (excepting IRS) would admit should not have to pay a penny to the IRS– e.g., grandmother who moved to Canada at young age and just discovered the IRS nonsense.
A request by a one person for an injunction against a single bank where the account is held could be sufficient to make the point and generate publicity.
There may be significant downside to the requester. The court might agree or not to disclose the name (John/Jane Doe) and I have no idea about liability. It is safest to assume that there will be filing fees and some court costs. Also, if the court rules against the requester, he/she might have to pay all court costs and unlimited attorney costs, fees etc. for the bank. Who would pay these costs? Who would indemnify the requester against any and all claims by the bank for damages etc.?
Also you would need to ensure that a failed request for an injunction at this stage would not impact negatively on the later Charter challenge which might come to the same court.
These are only thoughts for which I don’t know the answers. I completely agree with Just Me that publicity associated with some attempt would be helpful but also this has to be done carefully.
@IRScompliantF, thanks. Good ideas to pass on. An injunction is an excellent idea.
There should still be a way to challenge the Canadian federal government on its failure to provide equal protection to Canadians who are so-called US persons.
A child would know its not fair. Why not our best constitutional lawyers? Perhaps childlike simplicity is what we need.
@IRSCompliantforever – What is needed is someone who doesn’t care whether the IRS knows about them or not, has no US tax liability, has under $50,000 US in the bank, no US ties (like collecting US Social Security or other pensions) with all their assets earned and saved in Canada.
FBAR penalities are only civil. So forget about those.
Perhaps someone who’s retired, not wealthy, and anti-FATCA who could claim their rights as a Canadian citizen has been violated and also suffering discrimination. However in a previous post it was said that going after the banks won’t be useful until after an IGA is signed. Getting the IGA struck down is really the goal here.
Please don’t the discrimination angle where all Canadian citizens should be treated equally, not just suing for monetary damages for IRS disclosure.
Harper will eventually sign the IGA and leave it up to the courts. That’s what I’d do if I were him.
Oh….one other thing…a person born in the US so place of origin can be used as a discrimination issue.
@Don, heard rumour this morning that Harper may be leaving politics. Perhaps he signs the IGA then steps down because he knows it would be political suicide to give away Canada’s sovereignty.
@Petros – So Harper is basically a lame duck who will take the FATCA heat.
The courts will decide the scope of FATCA in the end. The IGA is the ‘wish list’ at present.
Getting resident Canadian citizens ‘carved out’ of FATCA on discrimination challenge is worth pursuing based on place of birth or origin.
Any damages awarded to a plaintiff because a bank disclosed private information would be a ‘cost of doing business’ in their view. Suing the banks potentially could be only a ‘one off’ case.
A systemic challenge/change is what needed such as discrimination.
I have always seen FATCA as a discrimination issue more than a tax issue. Does the Canadian government have the right to legally discriminate against a US born person holding Canadian citizen and treat them differently from fellow Canadians because he was born in the US?
The issue of snow birds or green cards could be different be those acts were voluntary. They didn’t have to overstay in Florida or apply for a green card.
A ‘US born’ person did not choose to be born in the US!
There is also the other issue of a foreign born US citizen evading FATCA by lying to the bank because they were born outside the US. Perhaps another challenge forcing the government to come up with a more robust system because in absence it isn’t fair one group gets caught up and another lives freely. That would cause more disruption in the FATCA argument.
There must be other angles to this argument.
Minister Flaherty’s holding a press conference tomorrow in Markham:
http://www.fin.gc.ca/notices-avis13/2013-12-05-eng.asp
@Bubblebustin,
Should I make a new post??
Looking at this from an EU perspective but know we are all in this together.
How is this not discriminatory if a US born Canadian Citizen or EU Citizen will have their private papers handed over to a foreign country (USA), but a non-US born US Citizen who is Irish, British, French will avoid the persecution?
I am not a lawyer but when a US born Canadian is in Canada, they are CANADIAN period. The idea of having dual nationality when you are in one of your nationality countries is rubbish. The master nationality rule either applies or it does not.
I am a citizen of the European Union and my EU country nationality anywhere in the EU. If I was a US Citizen holding myself out as such in the EU, I would be ILLEGAL.
If the government of Canada or the EU as a body or an EU country was to hand over solely records of US citizens, maybe they could do that.
If the government of Canada or the EU as a body or an EU country was to hand over all banking records of all its citizens maybe they could do that again.
But how, can they lawfully justify against any of the human rights protections, to hand over records of a Canadian citizen or an EU citizen living in the country of their nationality, to someone who had “indica” of being born in the USA?
It seems it would be “more lawful” if the banks also had to ask if you have a parent was a US citizen?
Would it be lawful for an IGA to ask for religion and if you give a religion that is primarily in the US then your records are handed over.
@ Petros I’m sharing with you an exerpt from a letter I wrote Obama with copies sent to Harper and Flaherty. It reads “A perspective any fifth grader can relate to is that in order for fair play to occur,all parties involved must be adequately informed and have a clear understanding of the rules of the game.
In another section I shared with him my dictionaries meaning for the word foreign:comes from or relates to a country that is not your own. Something that is foreign to a particular person or thing is not typical of them or is unknown to them.
An offshore bank is a bank located outside the country of residence of the depositor.
With all due respect President Obama,my neighbourhood bank by defintion, is neither foreign nor is it off-shore.
I’m sure the president filed my letter under the category of “Yes Virginia there is a Santa Claus.”
The fact is, by posting something that’s not even law in Canada on their websites, the banks have already caused many people harm, those who by virtue of the fact that FATCA information is posted on the bank’s website had reason to assume FATCA’s inevitable. There are countless financial decisions customers could make with this knowledge, many of them not beneficial to the customer.
That said, they are giving everyone a head’s up!
@Border Baby
That is wonderful you wrote Obama…I thought of doing the same but will wait for my CLN to arrive.
@Bubblebustin
You are right. The banks have FATCA pages on their websites. Unknown to their Managers, supposedly. My American – but 25 years a Canadian Resident (not citizen) asked her banking manager about FATCA and was told not to worry . they are going after the big tax evaders . and the bank has really no info on it I told my friend that the bank does indeed have a FATCA page on their website….Finally she is seeing the light and knows many others like her up here who are now getting concerned. I asked her if she called or wrote her MP…no…even after I told her about FATCA . Now she will be calling…Perhaps the snow ball will be getting bigger soon. Is there any word on the TD letter answer? That will be interesting.