Blaze and I have sought advice on how best to proceed with a legal challenge to Canada’s proposed IGA legislation to implement FATCA.
The advice received from legal people we consulted is that the first step should be to obtain a “warts and all legal opinion” on the merits of a challenge and that Joe Arvay, given his expertise and credibility, is the one to do this.
Please provide your comments and suggestions to this proposal, originally posted on Sandbox:
http://maplesandbox.ca/2014/possible-charter-challenge-legal-opinion-needed-and-funds/
“As most of you know, the possibility of a challenge under the Canadian Charter of Rights and Freedoms has been discussed for some time.
With the signing of the IGA and proposed legislation to override existing Canadian laws, we need to determine our next steps.
http://www.fin.gc.ca/treaties-conventions/pdf/FATCA-eng.pdf
http://www.fin.gc.ca/drleg-apl/2014/can-us-eu-0214l-eng.asp
Prominent Canadian constitutional lawyer Joseph Arvay has reviewed the IGA and the proposed legislation. He has recommended as the first step a formal legal opinion to advise if a challenge would have a reasonable possibility of success. In his letter to me (real name and address removed)
http://maplesandbox.ca/wp-content/uploads/2014/02/Mr-Arvay-Opinion-Letter.pdf
Mr. Arvay said
“You have asked for our opinion as to whether or not a challenge to any proposed legislation would have a reasonable prospect of success. Our initial review of the proposed legislation indicates that there may be a serious question as to whether it would withstand constitutional scrutiny once enacted. We question whether the proposed legislation is compliant with the Charter of Rights and Freedoms or whether it violates protections under the Charter against discrimination based on national origin or citizenship, against unreasonable search and seizure and against deprivation of liberty except in accordance with the principles of fundamental justice. We also question whether the proposed legislation falls validly under the federal jurisdiction over taxation, or whether it is in substance regulation of financial institutions in which case federal jurisdiction is limited to regulating banks but not provincially regulated financial institutions such as credit unions.”
IRSCompliantForever and I have communicated with four other lawyers. They all agree a legal opinion should be our next step before proceeding further.
Mr. Arvay’s letter also says
In order to answer those questions, a proper opinion needs to be prepared. We are prepared to prepare this opinion for a fee of $15,000 plus applicable taxes.
So, the cost for this legal opinion would be $15,000 plus tax, which would bring the cost for the opinion to around $17,000. To many, that cost for an opinion probably seems steep.
However, the four lawyers agree that this is a very reasonable cost and is far below what they would expect we would pay for a formal legal opinion.
To put the costs in perspective, we would need one contributor at $17,000 or 17 contributors at $1,000 each or 34 contributors at $500 each or 100 contributors at $170 each or 170 contributors at $100 each or a combination of those or other amounts. (Due to the administration, we would request donations of a minimum of $100 each.)
We should aim to raise more than that amount for contingency and administrative purposes.
There is agreement among those that we have contacted–including with a senior legal expert–that Mr. Arvay would be an excellent choice for a Charter challenge.
The next step is to decide a) Do people want to proceed with this? b) Do people want to retain Joe Arvay for a legal opinion? c) Are people willing and able to contribute to the costs?
Many individuals have asked if Canadian Civil Liberties Association could assist with the case. Abby Deshman has advised each case must go through an individual approval process. When CCLA becomes involved:
The general mode of operation is as an intervener, requesting the court add CCLA to the ongoing case as a friend of the court. Normally, the case is already going forward with the parties independently represented. As a non-profit, we unfortunately do not finance others’ legal cases, and in general are not in a position to represent individuals in launching legal actions.
Ms. Deshman, however, has advised it is possible CCLA might be able to provide some assistance with legal research.
Please advise if a) You agree we should seek this legal opinion b) if you would be able to contribute (we will request a minimum donation of $100).
Someone is researching ways we might raise and administer the funds if people do want to proceed and are able to contribute.
If the case proceeds beyond the legal opinion though the courts, the costs will, of course, increase greatly. We are not able to say exactly what the costs would be, but we expect they could be $100,000 to $250,000 or more.
You should note that after we receive a legal opinion, we will not be able to publicly share the details of the content or post it on line. This is for strategic reasons and to ensure confidentiality of the position the case may take before the courts.”
i would love to donate my share
i am considered a USP but am no Canadian and am located on the other side of the world
the only thing with me is that:
1. I want to staycompletely anonymous (some of us are so terrified)
2. i prefer to send the funds not through paypal but literally cash in an envelop – the risk is on me!! so I need an address
Like many others from outside Canada, i am following closely your battle against this horrendous Law that will affect milllions of law abiding citizens around the world.
@ChearsBigEars: I organized and attended the London Ontario session. I had dinner with John afterwards. I have the utmost of respect for John. This is not a John vs Joe issue.
@Badger: Thank you for pointing out the Finance Access to Information request and how much was redacted. I also submitted a request to Department of Justice, specifically asking for information about Canada’s laws and the Charter. They stalled and are continuing to stall even longer than Finance.
They did provide completely a few print pages recently. Many of the pages were completely blank except for citing the sections of the Privacy Act under which the information was being withheld.
LM,
As we mentioned somewhere above, some lawyers we have contacted, who we cannot identify publicly, have already agreed to help out in providing Mr. Arvay the legal opinion.
Each has a different perspective to contribute or assist.
Congrats LM !!!! What perfect timing !?!
@LM – not sure what has happened to my last two posts but I am getting “Resource Limit” errors …. so, Thank God, the Isaac Brock Society web site seems to be flooded with interest !
As to the serendipitous timing of your interview ! WOW ! How apropos !?! Congratulations. Shake off those shackles.
I think that your suggestion of the two Legal Scholars working together seems a good one.
I also had tried to post a suggestion that we simply elect a Triumvirate to represent us. Petros, I suggest, has been in the trenches from the beginning and seems an excellent candidate for such a leadership position. I am sure that two further candidates to complete the Triumvirate are easily found amongst the multitude that have worked so hard on this matter for so long … other names of Society members who have laboured long and hard with excellent results leap to mind though I will not note them now but leave that to others. Three good, trustworthy, informed and rational representatives is all we need to carry this torch in our collective name.
Sometimes you need a sharpshooter for precision and sometimes a streetfighter for close combat. One isn’t better than the other, but they are likely to be very different kinds of people. I’ve met Richardson, his business and his disposition is in dealing with people at close quarters. I don’t know much about constitutional law, but seems to me to be a different kind of endeavour, and you wouldn’t necessarily expect to find someone who thrives in that domain in the trenches. In a Charter case, it seems to me that the victory will be more technical than political, so the question is simply who is best equipped to deliver that result?
I feel Joe Avray is an excellent choice.
I’d be glad to contribute by whatever method is available
wow what a lot of twists and turns this thread has taken in a few short days.
i have been involved with several not for profit orgainzations and they all shared a common thread in that there was the usual reporting structure..i.e. president, secretary, treasurer ect. they had monthy (usually) meeting, there were minutes taken, discussion was undertaken and then a vote was taken for a motion on the floor. depending on the results of that motion the group then undertook the action provided for under that motion.
the issac brock society while a group of like minded people has none of the usual structure of any society i have been involved with and ergo all the different tangents this thread has taken.
yes any and all of us are entitled to our own opinion i think we need to respect the work the moderators (sorry for not naming names here but i am just not sure who is who in this zoo ) and let them proceed forward the way they see fit. they have gotten us this far and i am sure they eat, live and sleep this website and fighting fatca.
i don’t see this as one lawyer is better than another lawyer just because he did this for free or his price is to expensive for that. and all the bickering and fist pounding on the table that “you should do this” is quite frankly very off putting for me wanting to contribute or be involved.
i was at the vancouver meeting and found john quite an interesting and certainly knew his stuff. he did start the meeting saying 2 days before he was very sick with a cold so that may have contributed with his dry style of discussion. it may have also been the fact that we were taking law and taxes which when i talked to my accountant the next day about the meeting i said to him “god now i know why you charge what you do”
in closing like i said above we need to remember this issaca brock society is not like a regular society and we need to trust the administrators are going to do the right thing with our money. i am certain they only want what is best for all of us and if based on the information they have at this point in time this is the direction they want to go then so be it. and if people disagree with the choice or direction then here is the door and if you think you can do better then fill your boots and start another group.
@Mettleman, I won’t be personally accepting any money for Joe Arvay. I will put out at the outset that any money sent to me is used for the maintenance of this website.
Thus, it is up to the individuals who promoting this initiative to find suitable mechanism to do collect the money and pay Arvay.
One question I have is whether Arvay might render an opinion contrary to our expectations. If so, wouldn’t it be better to know in advance what his opinion is going to be? I would find it very frustrating to pay the man 17K only to learn that he agrees with the government.
@ Petros,
As a techno-dunce, can you tell me (and others) what the monthly cost is to maintain this vital website and how we can help out with these costs? 🙂
@Petros
thank you for the clairification.
as i pointed out in my comment i am not totaly sure who is doing or does what here so it was kind of a blanket comment.
my pervious post was born out of dissapointment or frustration in that since about 2 p.m. last thursday this website has had just over 100,000 hits. that is huge traffic and we are putting ourselves out there for the world to see.
is it not better to show the world that yes here is a group that has its “poop in a group” and are united to solving the riddle of how to get rid of fatca in canada rather than just a group of wingnuts who think fatca is wrong, we should all buy gold and this lawyer is better than that lawyer because……..
i certainly consider myself in the first group. i just as much as anybody wants to see this thing called fatca out of our country and the more of a united cohesive group we are and present to the outside world that we are such a cohesive group the more sucesses we stand to see.
when we get distracted and go off on tangents unfortunatly i fear we fall into the second group that is ineffective, lacks cohesiveness and are just a bunch of wingnuts.
not that wingnuts don’t have their use or place……perhpas just not here…..as this fight is a very serious one for the entire world
@Mettleman: Hazy suggested a formal organization a few months ago. At the time, most people wanted to keep things informal.
There is no problem with continuing to have informal online networks like Brock and Sandbox and also having a formal organization with the structure you suggest and which Hazy suggested earlier. The need for that type of organization may now be more imminent.
If we retain Joe Arvay or if we retain another lawyer, I understand that lawyer is required to be able to identify who his or her client is. That means either some of us will have to become clients as individuals or we will need an organization to be the client.
Having an organization would also help with the mechanism for fundraising as the funds could be directed to that organization for administration. That organization could have a structure similar to that suggested by you and Hazy. I have no idea how long it would take to organize and possibly register something like that.
There is another person who has been doing considerable work in researching ways for people to contribute funds. We expect something to be posted soon.
In terms of your comment that people “live eat and sleep” this issue, you are correct with one exception. We are not getting much sleep! 🙂
@LM, the current operations are basically paid for up to the next few months by generous donors. However, we are currently experiencing such traffic that the website has many down times where users receive an error message. Our service provider says that this is because of our quantity of traffic and they do not have the resources to change this problem. We would need, apparently, to go to a dedicated server. I have not yet investigated how much this would cost, but I imagine, that it would significantly increase our costs.
If we had more funds, I would also like to get a professional developer to make help this site to overcome the many logistical problems that we have had since moving to the dot.ca site.
I trust that Blaze and IRSCompliant have done their homework and that Joe is the guy to launch the suit. I’m not saying that John couldn’t do the job, and I sure do admire his passion, efforts and dedication. I was thoroughly impressed with his oral submission at the NZ committee recently for which I was fortunate enough to catch online. He was really impressive!! We will be very lucky if he can do the same when the FATCA legislation hits Canadian parliament. The written submission to the US senate finance committee where John collaborated with Yates and Stephen Kish was likewise amazing….and on and on.
However, Blaze and IRSCompliant are two very smart cookies, who like John, are dedicated to killing the FATCA beast, and would not be suggesting Joe Arvay unless they were confident he is our man for THIS PARTICULAR TASK.
Let’s just focus on figuring out how best to raise the funds and start rockin with the Charter challenge.
@Petros
Is there a way to contact you privately? I can steer you to a contact in regards to hosting/development. They are invested in this cause so may be willing to put up some time/resources.
@Wren, I sent you an email.
@ Blaze and all
i was not suggesting (not that it would be a bad idea just perhaps very difficult given our widespread geographic locations) that we for a formal society just pointing out the differences where by one (a formal society) has structure and a protocal in place for how to proceed on issues
and
here at this website where all operate under usernames and none of the convential protocal’s in place for the usual society.
given all the activity this website has generated obviously what the moderators (or whatever name needs to be given to the powers that be of the issac brock society.ca ) have been doing is working so lets not get sidetracked by tangents and things that we “posters” have no control over other than giving our personal opinion which only serves to muddy the waters.
let them be to work through the issues as the issues take time and unfortunatly with the internet comments are only a send button away 🙂
All,
A bank account for the donations has just been established by Dr. Stephen Kish, the Toronto person who co-authored the Senate Finance Committee submission with John Richardson. There will be a P.O box to receive cheques.
GwEvil is now doing the hard part by making the account accessible electronically.
@ Blaze, @petros… thank you for all that you do… wish you some sleeps….. _hope to see everyone at London UK session this sunday .
Blaze and IRSC
A couple of questions/observations:
1. The typical class action suit is against a corporation, and the outcome (if successful) is financial compensation for some wrong. In our case, however, I assume that the outcome sought is a legal decision calling the implementation legislation unconstitutional. The relevance of this question is that if I am right, we cannot expect compensation for legal expenses.
2. In looking ahead, we must recognize that a class action suit means a commitment to pursuing the question through trial, appeal, and Supreme Court of Canada. This would call for more than a few hundred thousand dollars; it would require marshalling the financial support of many thousands of individuals.
3. This raises the dilemma of the commons: there is a disincentive to contributing insofar as everyone at risk will benefit from a successful outcome, whether or not they contribute to the cost. I don’t have an answer to this, but it might be something to mull over for down the road. Perhaps the best way would be to make it really really easy for people to donate 10 or 20 bucks.
Thanks, once again, for your work. We all are very very appreciative!
@crystal, I sleep well at night. But then I relinquished US citizenship in 2011.
It might be worth contacting the Canadian Medical Association, as they spoke out against FATCA in 2011. Here is their letter to Flaherty:
https://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CC8QFjAB&url=https%3A%2F%2Fwww.cma.ca%2Fmultimedia%2FCMA%2FContent_Images%2FInside_cma%2FSubmissions%2F2011%2FCMA-letter-Flaherty-Nov21.pdf&ei=edUMU43sIMS38AHn5IG4Ag&usg=AFQjCNEO8WN9o1X8kidec7q5GO9gmEg71w&sig2=5Boh8WbVQ9AEswGy0_0gjw&bvm=bv.61725948,d.b2I
@NorthernShrike: A class action lawsuit is different from what we are doing. I will try to explain as I understand it as a lay person.
For a class action lawsuit, we must have experienced damages. For example, if banks closed our accounts in contravention of Canadian laws, we may have experienced damages and may have grounds for a class action lawsuit. I also understand there is a need for a group to somehow be certified as a group or a class for a class action lawsuit to proceed. I dont’t know if that certification occurs before a court or in some other way.
Again, that is my understanding as a lay person from what I was advised. Anyone interested in pursuing more information about class action could check it out.
From the first conversation Tiger, Somerfugl and I had with Joe Arvay on March 9, 2011, he advised if the banks violate Canadian laws, we may have grounds for a lawsuit against the banks. If the government changes the laws, we may have grounds for a lawsuit against the government.
The government is proposing legislation to allow the FATCA IGA to prevail over federal laws including banking, privacy and human rights laws. That is why we are proposing seeking a formal legal opinion for a possible Charter Challenge.
In terms of people being able to contribute small amounts of $10 each, we understand not everyone may be able to contribute larger amounts. However, the administration and bookkeeping, etc of that would be overwhelming for Dr. Kish who has opened an account to process contributions. That is why we are asking for donations of a minimum of $100 each for this stage.
One option might be for several people wanting to contribute smaller amounts to somehow pool their funds together into one contribution.
You are correct. If this proceeds through the courts up to the Supreme Court of Canada, the costs could be exorbitant. As the post says, they could be $100,000 to $250,000 or more. I now personally expect the government would make the process as long, messy and expensive as possible for us.
I hope you and others understand why we are asking for donations of at least $100. Those of us working on this are trying to do the best we can with the time and resources we have.
I am not sure if this would apply to our situation or if someone has already mentioned it, but it may be worth some consideration/exploration:
http://www.ccppcj.ca/e/rights/rights.shtml
It would be poetic justice to have the government fund, or assist in funding, this challenge.
I just read a little closer, I guess it is not a government program: “It is a non-profit organization that is independent from the government.” May still be worth investigating.