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.”
@Wondering: We had some technical issues at Sandbox last week. We became aware you were blocked when a couple of other people advised us directly they were blocked. This was a problem with our Spam filter and we have no idea why you and some others were completely blocked.
Outraged is our tech person and she and I received e-mails from a couple of other Brockers about your post here. She will be at work today, but I know she will post it as quickly as possible.
Could one of the administrators give Wondering my e-mail address or could Wondering e-mail me at my Sandbox e-mail address maplesandbox at yahoo dot ca
I apologize for this problem. Has anyone else been affected?
LM,
If they still have in their possession a green card they will no longer use and are not going to follow their requirements for US tax compliance from abroad (many have otherwise discarded or turned theirs in), this is the official way to turn it back in. http://photos.state.gov/libraries/164203/dhs/I-407.pdf.
Some specific instructions and notes regarding the process are here (and likely at other US Embassy sites): http://london.usembassy.gov/dhs/uscis/abandon.html.
Good luck in educating them past their happy naivety.
@ calgary411 Thanks – will do!
@ LM
For how to do everything wrong with a kryptonite card (i.e. green card) see my story below in the black section called “Profiles on Some Participants”. Sometimes the worst example is the best teaching example. Length of time living in the USA is critical (to the IRS anyway), exit tax liability is a factor and the IGA quote Calgary411 provided needs to be considered as well. Finally, deciding never to go to the USA (as I have done) is a decision everyone has to put into the mix. Sorry I can’t provide much more than that right now because we’re gong on a little fun day trip today so I’ve got to catch up on Brock and be off.
Em, have a great day trip today, a sunny and fairly “warm” reprieve before we’re again at -30. (I, too, am a prime example of what others can learn from my mistakes, although not green card related.)
@ calgary411
It was a fun day for us in a big city, less bigger than Calgary. We saw the movie “Philomena” and had a nice Swiss Chalet dinner … and the sky was not cloudy all day. We had spent 5 days being snowbound so we thought we deserved an outing after the snowplow gave us our freedom yesterday. Anyway I’m used to being a “bad example. Many long years ago on a faraway ski hill for instance. It was my first day on skis, did not know how to turn or stop so I was just going straight down and crashing at the bottom. I was having fun and it was working for me but I overheard a ski instructor telling his students, “That’s NOT the way you do it!”
@ Em. Go for it ! Life is for living … not to be wasted form filling whilst others believe they own your body, your spirit or (a percentage of) your work product.
BTW I found Philomena to be a wonderful movie. What a story. Lovely performances by all concerned. I remember when the news was whispered around that such things were happening in Ireland. Never thought that I would see that story unfold on the big screen.
@Wondering: Could you contact Outraged Canadian about the problems you are having at Maple Sandbox. outragedca@hotmail.com
@Everyone: Stay tuned. We will soon have more information for you about raising money for a legal opinion and how we will do it.
I promise “soon” will be soon–not at all like Jim Flaherty’s “soon.”
Everyone,
Soon is really soon as Blaze says.
And, in the meantime, how many of you were aware that the following are US-born Canadians? I’m just naming the current and former politicians here – – there are lots of others!!! And I’m only up to reviewing the “R’s. Anyone out there up to making contact for support (maybe even help with funding)? FATCA is going to effect these folks too:
Diane Ablonczy
Cindy Lou Ady
David Alward
Bob Callahan
Rex Crawford
Phil Edmonston
Corky Evans
John Leslie Evans
Randal Garrison
Bruce Hyer
Viola Leger
Elizabeth May
Frederick Lee “Ted” Morton
Svend Robinson ( currently lives/works in Switzerland where all the banks are closing to US expats!!!)
i`m not going to read 185 posts- but I was wondering if an intervention at a higher level might not be more advantageous for the money? I mean- if we are looking at a quarter of a million $ – then why not go right to the top and appeal to Den Hague on a human rights issue? Double taxation is an abomination. Nobody else does it and for good reason. Getting rid of CBT is really the answer. Then America could continue on its “tax evasion jihad” without harming the rest of the world.
Hmmm…Randal Garrison is my MP, and he’s not responded to any of my letters or calls. One of the constituency assistants is also born in the USA, don’t know if she’s still dual or not.
Even if she (and Garrison) is dual, this issue WILL effect her (and him) and details about FATCA should be raised in discussion with her (and him). Even if we receive no funding support or involvement on this IBS site, the more these folks are made aware, the more we can expect the word to spread. American-Cdn duals are everywhere…… 🙂
They’re both definitely aware. My first letter of concern to my .MP was in 2011. Hubby has written. I’ve been in twice in person. And we’vesent more letters recently. Nuttin’ but silence.
@ Fifi
Definitely not acceptable! Does his family realize their bank accounts are going to be spied on as of 1 July?
According to Wikipedia, he’s a co-founder of Victoria’s Immigrant-Refugee Centre; so what has he been doing recently for US immigrants and IRS refugees?
Although I’m not Canadian, but a furious dual citizen US/EU ex-pat, post the PayPal account and I’ll contribute. Seeing the IGA go down in flames would be worth $100.
Here’s my comment: Oh yes, Mr. Mazur, you just go ahead and keep spouting this BS that FATCA is the global standard…You guys are nothing more than EXTORTIONISTS! But hey…I can’t wait til your own government suddenly realizes the ruination that you have brought down on the US economy with FATCA, as the rest of the world FLEES investment in the US and starts using other currencies for world trade, bypassing the US dollar. You won’t be able to print your way out of that mess!
HA HA!
@Don
I hope more of our overseas allies will do the same! THANK YOU!!
Here are a few more (Post “R”) American-born Canadian politicians I have found at
http://en.wikipedia.org/wiki/Category:American_emigrants_to_Canada (you can see “Pre-R” names in my earlier comment):
Larry Spencer
Myron Thompson
Gary Lee Wright
If any IBS member is very into sports or music or journalism, and would be interested in some names of US-born Cdn citizens in these fields that they might consider contacting to spread the word about FATCA (and a possible constitutional challenge), I would be happy to share what I have discovered so far.
Now I’ll start looking at US-Expats in Canada (folks who, it seems, may not have become Cdn citizens; they too may be interested……. You can find these at
http://en.wikipedia.org/wiki/Category:American_expatriate_academics_in_Canada
If anyone knows Myron Thompson, please discuss with him. I had a good phone conversation with this former MP who says when he was an American, he followed US law and since he’s been a Canadian, he’s followed Canadian law.
@ Calgary411
Via wikipedia I’ve gleaned who has become a Cdn citizen.
HOWEVER, did these folks formally renounce or did they (e.g. in the 1970s) just assume that doing so would let them off the hook to the US? Are they aware of the current reality?
Myron Thompson became Cdn citizen in 1974 but did he formally let the US consulate/State Dept know? If not, then he is in the same situation as are others here.
Also, did he have children then? He could not renounce for them just because he took Cdn citizenship.
I wonder if he is aware of these US-logic-permutations!?!?!?!
@LM,
Are you also trying to contact these people?
@WhiteKat
At this point I’ve just been gathering interesting data.
The next 6 weeks I’m not in a position to do much of anything. But this morning I did have the thought – – if someone in IBS more knowledgable & articulate than me pulled together a well-worded not-too-long primer on the issues & plans (including where to get further information or to provide assistance), I would be willing (as one of my contributions) to cover the cost of copying & mailing such a letter to as many of these folks as I could get mailing addresses for.
My thinking in putting these names out on IBS was just that if there was anyone closely aligned with a particular profession or occupation – – or lived in a particular locale – – who was prepared to make a personal contact, I am certainly willing to share the names/locales, professions/occupations of these US-born Canadians found via Wikipedia.
Both letter-in-the-mail & face-to-face contact can be effective in different situations, tho anyone who thinks about making a personal connection should be REALLY WELL PREPARED and ready to approach with FACTS (not just anger & attitude).
These “well known” people probably have lots of folks trying to approach them for different purposes and many may have staff that go through their mail. Or they may have developed the habit of disregarding anything that doesn’t look immediately familiar. We want to inform but not have the door immediately shut in our faces, so have to approach this with care.
If I have time in the next few weeks, I’ll start going through the Wikipedia category page”category “American expatriates in Canada” for further names; BTW, there is also a Wiki page RE “American expatriates” ( http://en.wikipedia.org/wiki/Category:American_expatriates) with links to lots of other pages. Perhaps some IBSer in the EU would consider perusing these and gathering names of US-folk who will be FATCA-oppressed soon?
And I am certainly willing to hear from others about these ideas for spreading the word. Yes? No? Not yet?
Myron Thompson told me that he told Finance Minister Flaherty that when he was in the US he followed US law and since he’s been in Canada, he’s followed Canadian law. My phone call to him was as a private person, retired from government office, right after my interview with CBC, which I encouraged him to read / listen to. I would love someone to have further conversation with him that could be shared. I don’t have an email address or physical address for him and his phone number was given in confidence. Does anyone know him and could talk further with him?
@LM,
I could to the prime for you to mail, if you like.