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.
The fact is, just like Rosa Parks, WE ARE RIGHT!
Speaking of letters to President Obama, you might like to re-visit the one linked here: http://renounceuscitizenship.wordpress.com/2011/11/13/expatriating-acts-the-status-of-your-u-s-citizenship/
So what we need to find is a granny border baby, all Canadian parents, United Empire Loyalist ancestry, never lived in or possibly even visited the USA, all Canadian taxes paid in full, never filed anything with the IRS, as fearless as Marg Delahunty, the Princess Warrior, and looks likes Mrs. Santa Clause but maybe tinier … shouldn’t be too hard to find … I think. 😉
I talked with Jim Flaherty’s office this morning to as why my letter was not answered. They found my letter and told me they would answer it soon. In conversation with Jim Flaherty’s office, I was told I should start a letter writing campaign. It appears anti-fatca support needs to be strengthened. What about a huge protest outside of his office?? We need more people support here to get attention to this .
@NativeCanadian: More protest. That’s funny. The media is not generally interested in roasting their biggest paying clients, the banks and the government. Nevertheless, thanks for passing on the message. Perhaps I can get his attention tomorrow.
@ NativeCanadian
A letter writing campaign? I think that would mean snail mail right? I am on it! I’m tired of getting a stock attachment in response to my e-mails. I might even put my letter in a homemade Christmas card. I will be firm, but oh-so-polite and wish Mr. Flaherty the Best of the Season and ask that early in the New Year he give us some reason for joy, not a reason for a lawsuit.
@NativeCanadian,
Do you know anyone in the TO area who could join Gwen tomorrow at a last minute protest? She doesn’t want to go by herself.
Meanwhile, a good article underlining America’s hypocrisy as the 6th highest ranking member of The Tax Justice Network’s Financial Secrecy Index:
As FATCA nears, US is accused of hypocrisy in attacking offshore secrecy while keeping its own
You’re right, Don. There is no way that every ‘supposed’ US Person Abroad affected will be treated the same, which brings to mind even worse eventually — deemed US Persons reporting (whistle-blowing) other deemed US Persons. In my family there are three persons who have renounced their US citizenships and have CLN’s to show to their Canadian financial institutions.
However, there is also another in our family — my adult son who was born in Canada, raised in Canada, never registered with the US, never lived in the US, never had any benefit from the US, who a US immigration/nationality lawyer from Washington, DC advises me was a US citizen from the moment he was born. The US Consulate tells me that he cannot renounce his ‘supposed’ US citizenship (never registered with the US) as he has ‘mental incapacity’ and unable to understand the concept of “citizenship” or why it would be advisable or not to renounce that citizenship. I am also told that a parent, a guardian or a trustee does not have the right to renounce on that person’s behalf, even with a court order. No amount of dollars I could pay a US tax lawyer will release my son from this unwanted ‘supposed’ US citizenship that he had no choice in. He, and others like him, are “entrapped” into a supposed ‘US Citizenship’. Who will be the person to ‘whistle-blow’ these Canadians, born outside the US and a US place of birth does not show on their Canadian passport?
An observation regarding a common pitfall honest people fall into when dealing with Governments namely; they somehow acquired faith or were indoctrinated in school or by parents to react in the “let’s do something so it doesn’t happen to others” idea that politely asking politicians or corporations to do the right thing will affect anything or bring about change. Anyone that believes that politeness works is brainwashed and doomed to be trampled on all their lives. Forget writing Obama, Harper etc etc. Anyone instrumental in foisting this travesty on law abiding citizens is going to just laugh at the notion of letter writing. It’s like asking a mugger to not rob you because you are late for work. Canadians are WAY to passive and non aggressive. Can anyone give me an example of any real change in government policy that came about by asking as opposed to an in your face noisy squeeky wheel gets the grease stance?
What works time and time again is to figure out a way to deprive the enemy of something meaningful to them. It’s called “leverage”. In this case an attack on something meaningful to the banks, such as their public image, will promote an equal response and some kind of action.
I vehemently disagree that we need to wait. Forget the Government right now. Target a bank for the PUBLICITY which more than anything right now, we need desperately. We need to get the word out and standing in front of a government building is not going to accomplish anything unless there are tens of thousands there. We need public, very visible SHOCK VALUE. We need a Mandela, We need a MLK or some Occupy types who know what needs to be done to fight this guerrilla war in ways it can’t be ignored. Where is Max Keiser or Alex Jones. That’s what we need at this moment. Asking Government anything is wimping out. We need to do something uncharacteristic of Canadians. We need to demand what we want and use well thought out guerrilla marketing tactics to get them from the back. I love the Occupy slogan of “We do not forgive; we do not forget; expect us”. We need tactics they don’t expect. JMO.
@ ChearsBigEars
Well that certainly made me think but I just finished my card and letter to Mr. Flaherty so I’m going to mail them while we wait to figure out “guerilla marketing tactics”. (I’m tired of sending e-mails anyway.) I wish we had some young sprouts at Brock with the imagination and ingenuity to help us out with this. I’ve been a please and thank you Canadian all my life so this would be a hard transition for me.
@CheersBig Ears
I completely agree. I was pretty apathetic untill FATCA jumped up and smacked me in the face. I participated in the Occupy Protest and as my FATCA wound was pretty fresh I shared my sob story with anyone who would listen and low and behold the first three people I spoke with were similarly affected. One women with American citizenship had never even heard of Fatca. Another Canadian woman was in utter disbelieve as I shared my story, she kept returning to me and asked to repeat my story she simply couldn’t comprehend how our gov’t would allow it. There where actually more old folks like me in the crowd than young rebellers. The young organisers handed out pamphlets that recommended googling Zeitgeist and I’ve never been the same since veiwing it.I met so many interesting people with similar tales of woe that involved the Banks or the Gov’t. I received an invitation to a presentation at the Calgary Library titled “Educated into Stupidity” which I attended and left with a new reality.Yes Big Ears we are conditioned from an early age to sit down,shut up and do what your told.By the time you get to be my age your so good at answering to the master that you lose the ability to shout “I’M AS MAD AS HELL AND I’M NOT GONNA TAKE IT ANYMORE” I always felt I’d missed out on something pretty special because I didn’t come of age in the sixties. There was nothing left to protest in the seventies. The Occupy protest gave me a taste of something I thought I’d missed out on. It was the most exhilerating life-changing day of my life.I made several visits to the camp especially as the days got cold I brought them blankets,mits touques kitchen supplies. They had many benefactors Tim Hortons and Spolumbos where two that I was aware of. I was shocked at how they were protrayed by the media and city hall .they were represented as lazy, dirty,misfits which in my opinion couldn’t have been further from the truth. My take away was that many of us have issues with Government if we work together as a group our message is more likely to be heard. When one Canadian citizens rights are violated all citizens rights are violated. Our experience isn’t unique look at the super jails Harper is building and the disproportionate numbers of blacks and aboriginals that are being warehoused like caged animals. Why?
It’s our duty to keep government in check. They are our public servants.Our tax dollars pay their salaries. Demand accountability it is your right.We have a limited amount of time to make this right don’t let it slip away. You’ll only be left with regrets. Maude Barlow’s quote for the day “Activism is like bathing miss a day and you start to stink” Now lets buck up sisters we’ve got some Yankee flag burning to do down at city hall.
@Calgary411 – Thinking about the other posts, getting the IGA struck down in court on grounds of discrimination is even more crucial. The CRA may not be subject to the Charter, however, it’s likely the Ministry of Finance would be. The Ministry is there to ‘negotiate’ agreements etc, the CRA’s is there to administer the MoF’s decisions.
So if the IGA is signed, it’s likely the CRA can move forward with FATCA compliance. What is needed is an injunction against implementation of the IGA until a court can look at the issue of discrimination.
If the IGA is struck down by a court, then Parliament would have the headache of having to change the Charter or other laws for the benefit of the US government. That should go down like a lead balloon and get more media attention!
Please continue this conversation here: http://isaacbrocksociety.ca/2013/12/06/conspiracy-lawsuit-against-td-bank-iv/
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