A minor UPDATE:
We had hoped that the submission to the Federal Court of Canada for the FATCA IGA enabling legislation Charter-Constitutional trial would have been made in January, but there is still a “technical” issue that has to be sorted out first by the Case Management Judge, who is supervising the litigation.
I am hoping (but not promising) that our submission can be made in February/March and still anticipate that the trial will take place in 2017 (I am guessing that the location will be in Vancouver).
— I also ran across this 2012 comment (below) on Brock by Tim, who was asking that FATCA complaints on Brock instead be turned into FATCA litigation, which as we all know now, moves very slowly.
Tim also mentioned that there would be many Canadian lawyers who would “jump at the chance” to fight the FATCA law to be imposed on Canada with the enthusiastic approval of Canada’s Tory and Liberal Leaders. At the beginning, I looked but never found any groundswell of Canadian lawyers (including CCLA) willing to take on our lawsuit. You can figure out the reasons why they were reluctant to do so:
August 4, 2012 at 11:16 am
“I guess what I am saying is that if you want to bring down FATCA as I do we need to find some type of mechanism other than complaining “louder” which isn’t going to work in my opinion. I believe FATCA has a huge blindspot in that it does not at take into account Canadian law. I also believe there are many Canadian lawyers that would jump at the chance to fight FATCA if the legal and constitutional issues were put in front of them. As I tried to show in one of my posts yesterday far more trivial issues have been litigated all the way to the Supreme Court of Canada. It is also very telling that at all of these FATCA seminars put on by the banking industry none of the lawyer are Canadian…”
— By the way, in the remaining time before submission, we are still seeking an Exit Tax Witness…
February Canadian FATCA IGA Charter-Constitutional trial update.
I still stand by my original comment to a point. I suspect there would be “other” lawyers who’s names I won’t mention that would have taken the case if the current litigation team had been unavailable. Generally the “other” lawyers whom I suspect would take on this case are those who tend to represent “unpopular” clients like the woman who represented that Jian Ghomeshi radio host guy. I do agree that what I would call the “corporate” bar has no willingness to deal with this issue and you can assume the reasons why.
Where I think the main plus of having a Liberal prime minister is that I think if Canadians had reelected Harper there was a very real possibility that Harper would have started using the notwithstanding clause including quite possibly in our case.
While totally unrelated to our case I am watching what Trudeau does on Pot legalization quite closely. Clearly he made a very clear election promise(like electoral reform for fwiw) but also know that the usual suspects i.e. the same people(bankers, lawyers, civil servants) who don’t like “us” and won’t support our FATCA litigation are lobbying Trudeau heavily to back down from legalization especially after Trump’s reelection. Having said that “if” Trudeau backs down on pot after making a very explicit election promise supported by the vast majority of Canadians simply because the banks and international “community” are uncomfortable with it then I think one must take a serious look at the state of Canadian democracy and sovereignty.
I encourage everyone frustrated with our progress to watch the video below with Canadian Law Professor Alan Young(whom I would suspect take “our” case if our current team was unavailable) discussing how Constitutional law challenges.
While I know this makes me VERY unpopular here I have always been in the later rather than sooner camp in terms of going to trial. As Young points in Charter litigation picking your time, place, and method is as important as your argument.
“… I think one must take a serious look at the state of Canadian democracy and sovereignty.”
I already have and I have found it to be in a fairly poor state. However, if the Canadian justice system comes through for us on the lawsuit then I will upgrade my assessment slightly.
I will also point out that at Brock in the past I have called for mass firings of members of the Government Civil Service for which I was crucified. I never called for these firing out of some type of anti government vengeance. I did so because many high level members of the permanent civil service are in fact responsible for the poor state of Canadian democracy and sovereignty. Completely unrelated to FATCA I am almost certain it is the government civil service which is heavily lobbying Trudeau against marijuana legalization no matter the fact that it was a written electoral promise supported by the majority of Canadians.
The real advantage of Trump’s election is when Obama was President basically anything the US did was given the benefit of the doubt in Canada whereas with Trump that is decidedly not the case. Now there are still the “usual suspects” who think now Canada should go along with everything Trump wants however this go along to get along group is much smaller than when Obama was President(which basically was almost everyone in Canadian politics par Murray Rankin and a few others).
The Law Society of BC did issue a Bencher’s Bulletin regarding Fatca and how members of the bar with US taint should address the situation. However, I am not convinced they truly understand the effects of Fatca. When I came to my employer about Fatca, he phoned the Law Society for answers. They were NOT up to speed, but very quickly realized firms might have an issue such as owners, partners, associates and staff with signing authority with US taint. I was lucky because I got free legal advice. After speaking with other lawyers who specialize in citizenship issues about my circumstances, they came back with the fact that they felt I could make a case for to relinquish and possibly be approved. I renounced in the end because I wanted a speedy exit. I say all this because I believe the reason that the Law Society has not jumped all over Fatca is because we have not felt the level of persecution that Europe has felt. They will do the W9, they will never disclose where those trust funds came from and if the US wants to know more, they will have to go through the CRA. CRA will be told that those funds belong to the client.
I hope that any further delays are strategic rather than technical.
Thanks for the update.