WITNESS SEARCH UPDATE FOR CANADIAN FATCA IGA LAWSUIT:
WE STILL SEEK MORE CANADIAN WITNESSES:
Have you experienced marital stress or breakup, or medical or psychiatric illness because Canada turned you and your family over to a foreign country — or because you were afraid and entered into IRS compliance and suffered harm, or because you are in “hiding” and can’t afford to be IRS compliant or to renounce? Be a witness.
No single witness will be “perfect” from a litigation point of view. We will be seeking more witnesses (almost) right up to the time of submission of court documents. Your specific situation, that we cannot predict, might have unique characteristics that would be helpful in the lawsuit.
If you cannot be a witness, please tell a friend who you think might be interested.
— If you are interested in becoming a witness You will describe your harm in a written affidavit which will be made public and you can contact me at stephen.kish.chair@adcs-adsc.ca See our website at www.adcs-adsc-ca
FOR THOSE CANADIANS WHO ALREADY VOLUNTEERED: Unless you have already been informed by me or by our legal team that you will not be a witness, there is still the possibility — or (for some) likelihood — that you will be asked to be a witness. I’m sorry but I cannot estimate the time it will take for our legal team to get back to you with their decision. This is because they need to “mesh” the characteristics of all of the necessary witnesses and testimonies with the actual detailed submission that contains the entirety of their evidence, which are all still evolving. Please be patient in our getting back to you with a decision. Thank you for your help.
LM and NorthernShrike,
Many thanks!
I repeat here LM’s Kijiji post and hope that others will repost:
“Hello Brockers in Canada – – you too can do the same (copy and past this Kijiji ad in your community – – http://www.kijiji.ca/v-view-details.html?requestSource=b&adId=1151794018)
@ Stephen Kish…Have you considered an ad in the Calgary area? I have been told second hand, but I could not get names, that a number of Calgarians with businesses went into the Overseas Program and paid fines, taxes. I am told that one individual paid somewhere around $55,000 and in chose to go out of business. I could not get a name because the person telling me this info was a friend of this individual and didn’t feel right telling me their name. I ask this person to let them know that a lawsuit exists and witnesses are wanted.
More people will get to know and loathe the name of FATCA as this year’s reporting deadlines (various, including those for ‘pre-existing’ accts. roll around;
http://www.accountingtoday.com/blogs/debits-credits/news/fatca-deadlines-coming-up-77697-1.html
On the ADCS website
“We ask for Canadian witnesses willing to testify, in a written affidavit, to their harms caused by the Canadian FATCA compliance legislation. Their affidavits and names will be submitted to the Federal Court and will be made public.”
For those of us who do not know anything about the legal process, some additional details as to what a witness can expect would be helpful to ease fears. For example, aside from supplying a written affidavit, is there a likelihood that a witness will be cross examined in person?
I have posted an ad with Kijiji in Calgary – http://www.kijiji.ca/v-view-details.html?requestSource=b&adId=1153472022
Ann, I don’t think that we could afford an ad in a Calgary newspaper — but if anyone in Calgary wants to donate and pay the cost of an ad, let me know. I’m paying myself for the cost of a border baby ad in the small St.Croix Courier (an newspaper suggested by Tom Alciere) but the cost of two largish ads (1/4 page) is only around $600. If the ad does not bring in one witness, I only have myself to blame. .
If you can find the person that you mentioned, please ask whether the person would consider being a witness….
Middle, the witnesses will provide a written statement, in response to one or more questions asked by our litigator. All the witness has to do is to tell the truth. The statement will be notarised, submitted to the court, and become a public record. My experience as a Plaintiff/Witness in the U.S. FATCA lawsuit is that lawyers want affidavits to be short, just to the point, and without extraneous details.
The answer to whether the witness would be cross-examined in person is best answered not in Brock but in a discussion between witness and litigator. My personal opinion is that the likelihood of cross-examination is very low. Ginny and Gwen were never cross-examined. There is no upside to the Crown attorneys asking the witnesses, who will all be sympathetic, any questions. The Crown would rather us not have any witnesses.
Having said that, some potential witnesses I know would love to be cross-examined by the Crown, and I suspect that our plaintiffs might fall into that category.
@Middle Finger
AFAIK either side can subpoena any witnesses that it wants to. Anyone at all can be subpoenaed but if someone provides an affidavit obviously they have put themselves out there as a prime candidate to be subpoenaed.
The only way that there would be a guarantee that someone would not be subpoenaed would be if both Arvay and the gov’t agree not to subpoena them. Even if Arvay promises not to issue a subpoena, there is no guarantee that the gov’t wouldn’t do so. In that case the person would become a “hostile witness” and the hostile questioning would come under direct examination by the gov’t, not cross examination by Arvay–but such a scenario is perfectly possible. The gov’t might do so if they want to challenge some statement made in an affidavit and Arvay isn’t forthcoming with summoning his own witnesses.
If I’m mistaken in any of the above I hope and trust someone will correct me.
To answer your question as to whether it is likely (and not merely possible) I defer to others. But IMHO it is time for people to come forward as witnesses and accept whatever risk is involved in doing so. Nothing ventured nothing gained. The money is in place to fund this lawsuit. It is time for people to put their mouths where their money is.
Thanks and congratulations, Stephen and Harry Higgins (Calgary) in getting your *Opinions* published in the Toronto Star, http://www.thestar.com/opinion/letters_to_the_editors/2016/04/04/liberals-flip-flopped-on-privacy.html.
Thanks to Jim Mason (Toronto) too:
I’m still trying to keep the faith, my friend, H.H., and Stephen!
@Stephen Kish From thousands of kilometers away St. Croix Canada seems kind of small on Google Maps. Not much on twitter. Maybe that publication has widespread circulation in the border area. Maybe you were thinking of a particular US hospital situation where Canadians would go for births as closest? At least it seems like the US town on the other side of the border is a bit bigger. I had a go at Cornwall Canada here as it seems larger and more twitter handles:
https://twitter.com/JCDoubleTaxed/status/717142392239841280
Maybe someone needs to start calling St Croix – different businesses, rotary, church etc – and asking. If it is a small town then people usually like to talk.
In a town like this? (Or at least a break from it all with some of my favourite musicians!)
JC,
Yes, the towns are small which may be a plus. I contacted the Stanstead Journal and the St Croix Courier only in the hope of finding “border babies” for our lawsuit. Stanstead was previously mentioned in a CBC interview (and by a Quebecer to me) in which it was claimed that a significant minority of the residents were born on the U.S. side. Both newspapers confirmed with me that there are many residents in the area whose mothers had to go to a U.S. hospital to give birth.
Again, advertising for witnesses is a gamble and I am hoping that others will take the chance. Also, I like the fact that both newspapers have been around for a very long time (1845, 1865).
“Kijiji is fairly strict about not posting your ad in more than one locale […]
I don’t know if Craigs’List is as picky about not creating duplicate postings in different communities.”
They are. A few years ago (not now), my employer sought applicants in Tokyo, Osaka, or Vancouver. It didn’t matter which of these three places the applicant would work. Craig’s list banned us when I tried to post the third one.
‘Even if Arvay promises not to issue a subpoena, there is no guarantee that the gov’t wouldn’t do so. In that case the person would become a “hostile witness” and the hostile questioning would come under direct examination by the gov’t, not cross examination by Arvay–but such a scenario is perfectly possible.’
If the government subpoenas a witness, doesn’t the government have to pay travel expenses? Of course the government doesn’t care (it’s not their money after all) but at least the witness can be assured it won’t cost them.
@Stephen Kish
Not much from Stanstead on Twitter. I’ll see if I might get some help from James Rioux who appears to live in the area.
https://twitter.com/JCDoubleTaxed/status/717164268651544576
@Norman Diamond
I was subpoenaed recently in a case in another part of the country (USA). The case was to have gone to trial today but the matter was settled late last week. They did, indeed, offer to cover my travel expenses had the case gone to trial. In the end that didn’t happen.
YMMV
@Stephen Kish
You might offer an interview to those publications. This might appeal more than an ad. Better yet have PR put together the appeal in a story about border babies, complete with picture that the border publications may run with as a story in their publication, and have the PR resource distribute [just hypothetical course of action].
Perhaps there may be a US person PR resource in the Toronto area that may lend assistance. Along the journey please look out for such person.
@Dash
You called?
Let’s use Canadian terms shall we? No one is issued a subpoena if they are a witness or a plaintiff at this stage. What happens is one side sends a request for Examination for Discovery to the opposing lawyer. In Canada, we refer to this as Examinations. In the US, it is called Depositions I believe. In the usual course of events, questions are limited to the statements contained, in the case of witnesses, to their affidavit. It is far more open for plaintiffs however.
We are not in criminal court nor is anyone on the stand at this point. Your lawyer is with you and will object if s/he feels any inappropriate question is being proffered and will direct you not to answer. If the other side objects to the objection, they have the choice to bring an application to a judge asking for a direction to answer the question, thus triggering the judge to decide if the question is appropriate or beyond the scope of inquiry.
Discoveries take place out of court on private company premises. In certain cases for specific reasons, it is now permissible to take place via video. Think Skype.
It is not nearly as intimidating as people imagine. I say this not as just a lawyer but I have been told this by many of my clients after they have been through one. But certainly unsettling for some I am sure. Remember your lawyer will prepare you and is sitting by your side at all times.
The bottom line is: if the Government hasn’t bothered to examine the two plaintiffs, what are the chances they would examine the witnesses? A plaintiff can be examined on any of the paragraphs in the Statement of Claim. A witness is restricted to be examined on their affidavits and attached documents if any and as Stephen has pointed out those are generally very succint. ( Unlike me.)
There is an exception to this for an expert witness of course. They are subject to a fuller exam.
And yes, you can bet I wish I would get a chance to be examined. I just might have a few bon mots to share. But the room may have to be booked for a full day or three before I run out of words. Obviously, I write in ( lengthy?) paragraphs here. In Discovery I’d speak in chapters. Both Gwen and I are ready. I look forward to that moment but doubt it will happen.
Could a witness be called for discovery? Sure. Probable? Not so sure. Would they have to speak at trial? Highly unlikely. Do we need witnesses? Definitely.
Are we stalled till then? Absolutely.
@JC “Maybe someone needs to start calling St Croix – different businesses, rotary, church etc – and asking. If it is a small town then people usually like to talk.”
Now that is a GREAT IDEA! Someone should stand up to coordinate this so no business or church or club gets more than one call. Anyone game?
Also, anyone interested in trying to contact other community newspapers where the community is along the border? Let me know..
“Remember your lawyer will prepare you and is sitting by your side at all times.”
Who pays for the lawyer?
An ad is not as private as direct contact. If everybody in town knows Mr. Smith is a “border baby” and everybody in town knows his affidavit is necessary, that puts pressure on him to affirm.
Here’s a stupid question, but what are the real chances of the IRS sending out Dear John letters to the individuals represented by those 155,000 records within the next 69 days? That would seem to be the ideal constituency to try to reach when you’re desperately searching for witnesses with > $50,000 reportable accounts who you already know are living on borrowed time.
So, is this just a matter of lousy timing – that we simply haven’t yet achieved critical mass in awareness and outrage, precisely because the IRS hasn’t processed and acted-upon this first batch of records, thereby unleashing a veritable shitstorm on this side of the border? Or, more likely, could they be fully aware of what we’re up to and are intentionally waiting for the clock to run out on our case before they launch their inevitable Canadian – and global – blitzkrieg? Since our new Revenue Minister herself was advised by the CRA to “sit tight” on our file, pending the final legal outcome, why wouldn’t the IRS itself be receiving similar sage advice from their duplicitous Canadian colleagues?
If we’ve learned anything so far, it’s that none of this is happening by accident, or through lack of forethought or planning. Both the Canadian and US governments have been fully engaged in this utterly serious game of chess and we are merely their expendable pawns.
@Norman
All legal fees have been paid. Our lawyers would attend with the witness for any examination.
http://www.mirror.co.uk/news/uk-news/edward-snowden-just-summed-up-7691935
After revelations that tax dodging David Cameron’s father, Ian, had money salted away in tax havens, David Cameron said to the press yesterday, ‘it was a private family matter.’
Edward Snowden tweeted in a rebuff, ‘Oh, now he’s interested in privacy.’
Transparency for the masses, privacy for the few.
Itsn’t it true?
Any Trudeau accounts listed in the Panama papers?
http://www.bbc.com/news/world-europe-35966412
First politician to take a hit from the Panama Papers, the Icelandic PM is asking to dissolve parliament and hold an early poll.
bubblebustin and Deckard,
Very sad, but entirely believable to me that this could be the strategy as we know the financial institutions are more important than the individuals affected.