December 7, 2017 CANADIAN FATCA IGA LITIGATION UPDATE:
Our trial on Canada’s FATCA IGA legislation in Federal Court is being delayed because Government is having a difficult time providing retainer contracts to their expert witnesses (our side’s experts and Plaintiffs have already filed affidavits).
We can’t move forward until we receive Government’s evidence.
I can say now that if Canada will not agree to a date to provide its evidence early in the new year then our litigators will seek the assistance of the Case Management Judge, whose job it is to keep the litigation moving. The purpose of the Case Management Conference will be to obtain a court order to get Government to provide its evidence in a timely manner.
As to future timelines: this is my personal guess only (which depends in part on the evidence, as yet unknown, to be provided by Government), but I expect that the trial in Federal Court will take place in the last half of 2018 with a decision possibly in very late 2018/early 2019.
@badger
I agree that C-23 too is shameful. It too is a shameful violation of the Charter. But I only just realized in this thread how weak the Charter protections actually are when you take Oakes into account. That was quite an eye opener and not in a good way.
@ Dash1729
But I know Arvay and team are very, very committed to this effort and will do all they can to pull out a victory no matter how improbable.”
I’ll just remind you and others that Joseph Arvay is no longer on the team. He moved to another law firm which can happen when litigation progresses so slowly. We’ve even lost Ginny along the way (health problems). None of us is getting any younger which means if the government doesn’t get its ducks in a row soon there will (and have been) some of us who will never see the conclusion of this case — be it win, lose or draw.
As for you thinking you are in a better place where human rights are more protected, sorry but you merely jumped from one frying pan to another. I’ve been following the Bundy trials in Oregon and Nevada and I can tell you that the courts down there do not respect even the most basic of human rights and literally sneer at the US Constitution.
“None of us is getting any younger which means if the government doesn’t get its ducks in a row soon”
That’s exactly the manner in which the government DOES have its ducks in a row.
I wonder if US politics has an unsaid role in how this plays out.
Sure, this is not directly about politics, but judges’ views are shaped by current events, just as ours are. In this case I would be more worried by the presence of an ostensibly friendly, “civilized”, USA (i.e. Obama, Clinton, Democrats). Is the view from Canada of Trump’s America that of a belligerent bully, trampling NAFTA, not hesitating to trash Canada’s economic interests?
I would argue that, although we all know (I say this as a Dem) that Democrats are more dangerous for us than Republicans, the view from abroad, be it so close as across the border, may be different and thus embolden decision making, i.e. help nudge judgement to affirm Canadian sovereignty. After all, would the US really enact the withholding provisions of FATCA? Wouldn’t this in turn stimulate part of Congress to take another look at FATCA that at least the Freedom Caucus, and perhaps others, would gladly dismantle? It might be quite politically palatable, in other words, at the present time, for Canada to resist US pressure (which might even be halfhearted), more so than if we had Schumer in lieu of McConnell and Clinton in lieu of Trump.
Delay might not be a bad thing. Who knows how much Canada will want to be seen as america’s best friend in 12 months…
@Anonymous by necessity
I don’t think it has much to do with whether we are best friends or even the current political climate. I think it is the sanctions that are the sticking point. Also, by the time the Canadian litigation reaches federal court, the US may have an impeached president and a Democrat congress.
This sets a wonderful precedent for Canada US relations. No more negotiations, just threaten crippling sanctions against Canada to get us to do whatever they want!
@Dash1729
Pathetic isn’t it? Just as pathetic that a business would continue to profit from a customer while turning that customer’s private financial data over to the Canadian and US governments, made worse by the fact that the customer was never informed of doing so, something that would have allowed the customer to make the decision as to whether to take their business elsewhere.
I thought we had better laws that protect consumers from this kind of entrapment for profit in Canada.
#EmBee
I’ve been following the Bundy trials in Oregon and Nevada and I can tell you that the courts down there do not respect even the most basic of human rights and literally sneer at the US Constitution.
Agreed. Every once in a while the SCOTUS does hand down a really sweeping decision that does help protect human rights. But such decisions are years or decades in the making and the average person (eg apparently the Bundy case) doesn’t have access to that process. Most of the time they get worn down by the time and the legal costs long, long before they ever get to the stage of a precedent setting SCOTUS ruling. And even if they have the resources and time to take their fight that far, the SCOTUS only hears a small percentage of the cases that are appealed.
I’d hoped, though, that Canada’s Charter was stronger but what I’ve read in this thread is new to me and disappointing. The Oakes test in particular is a bit of a shock to me–I should have known about it before now but I didn’t–and seems to my layman’s (non-legal) mind to put plaintiffs in a Charter challenge in very weak position. That seems especially true in the present case where I fear the government will claim that striking down the IGA will harm others (through the sanctions) even more than the plaintiffs’ current harm–as great as that may be.
I do however have faith in Arvay’s successors–I hadn’t known that Arvay had left the case but I’ve had contact with his colleagues who I presume are continuing his work–that if there is an argument to be made that will overcome this difficult uphill battle, they will find it. Yes no one is getting any younger. I did know that Ginny had left the case and I wonder if the third plaintiff, Kazia, who is in a demographically similar position (born in the US but little US contact beyond early childhood) to Ginny but is younger was picked partly due to her relative youth. Arvay, too, isn’t especially young and I always wondered if he might retire–even if he hadn’t gone on to another firm–before this work was done and leave it to successors.
Still though I have great confidence in the team to see this thing through and I think it is a valuable fight even if it takes years. I am realizing it is more of an uphill battle than I’d hoped though.
@ Dash1729
Charter challenges are a long shot, no doubt about that, but when I did my part to support this one I thought about some last-second, full-field, game-winning touchdown runs I’ve seen which made me think miracles do happen but there has to be some “try against all odds” first. There’s been such a miracle in the Bundy case where after 2 years of imprisonment without bail most of the defendants are now in “pre-trial release”. I thought nothing would ever soften the heart of that Obama-appointed, prosecution-biased judge but it happened and very suddently. It’s outrageous that now the “right to a speedy trial” has been degraded to “detention for up to 5 years before a trial”.
I just heard Trump on TV saying, “My job is not to be President of the world, my job is to be President of the United States.” That is as valuable as the one about “A Canadian is a Canadian is a Canadian.”
Here’s a link:
http://www.telegraph.co.uk/news/2017/12/09/donald-trump-throws-weight-behind-roy-moore-rounds-sanctuary/
Now, if UK wants FATCA reciprocity or tells USA to join CRS, Trump would probably tell
them to .gov.uk themselves.
“This sets a wonderful precedent for Canada US relations. No more negotiations, just threaten crippling sanctions against Canada to get us to do whatever they want!”
Not just Canada, the world.
What will the US demand next, or else?
That’s the big question that financial institutions and governments globally should be asking themselves. The USA has shown itself to be a thoughtless, stupid arrogant bully a brand new weapon capable of bombing any non compliant nation right back to the financial stone ages.
As the US declines and I believe it is declining, what will it do next in order to survive?
History tell us a lot.
@Mike
FATCA – Foreign Account Tax COLLECTION Act???
Too bad the gLibs continue to defend their collusion with a foreign nation in its crusade to milk foreign taxes out of ordinary Canadian taxpayers working and saving in Canada, and refuses to protect ordinary law abiding Canadians with local bank accounts from US extraterritorial predations the way they defend Canadian shingles and shakes. Here’s a recent statement stating that they have now moved to a WTO complaint (yet they continue to collude with the US to enable US extraterritorial FATCA on our local legal banking and other types of accounts).
“.. Andrew Leslie Parliamentary Secretary to the Minister of Foreign Affairs (Canada-U.S. Relations)
Mr. Speaker, the duties imposed by the U.S. Department of Commerce and the International Trade Tribunal are unwanted, unfair, and deeply troubling.
We recently challenged the countervailing duties under NAFTA’s chapter 19, and two days ago we initiated legal action under the World Trade Organization. Our forestry industry has succeeded in every such previous dispute, as has Canada. We will continue to fiercely defend our softwood lumber industry and its incredible work.”
https://openparliament.ca/debates/2017/12/7/andrew-leslie-2/
FATCA is a NAFTA issue (ex. http://www.occ.ca/wp-content/uploads/2013/05/OCC-NAFTA-Letter-with-CCC-July-2017.pdf , https://openparliament.ca/committees/finance/41-2/34/prof-arthur-cockfield-1/ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2433198 , https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2407264 , yet the gLibs will “fiercely defend” Canadian softwood lumber, but not ordinary Canadians and their Canadian family savings and personal and financial data.
@Tom Alciere
“I just heard Trump on TV saying, ‘My job is not to be President of the world, my job is to be President of the United States.'”
Really. Well then, he should keep his anachronistic tax system within his borders…
Some Canadian parliamentarians with US birthplace citizenship or other US status are on this list;
http://www.cbc.ca/news/politics/dual-citizenship-mps-senators-parliament-australia-1.4439522
Might be useful to contact them. At least one is a Liberal.
This CBC article mentioned by Badger needs its own post. Can anyone explain what was going on with Randall Garrison. Never heard of the $3000 fine.
@ Tim Smyth
That $3000 “fine” sounds like the Canadian dollar equivalent of the cost of renouncing US citizenship. Fine or penalty more accurately describe what the US State Dept. considers to be a fee.
Yeah I would assume that’s just the renunciation fee converted to Canadian dollars – $3018 at current exchange rates.
If it only cost him $3000, then he presumably did not also file multiple years worth of back tax returns before renouncing (or did it all himself, which seems unlikely).
In cases like his, which could cause diplomatic hassle for the US if the person in question makes a fuss, I would not be surprised if the US allows a renunciation to go through without all the tax BS imposed on the minnows.
From the CBC article that our badger found:
http://www.cbc.ca/news/politics/dual-citizenship-mps-senators-parliament-australia-1.4439522
Actually I think Elizabeth May is pretty certain of her US status but what isn’t certain is whether or not she has, by now, formalized her perceived US disconnect. From an artlcle way back in 2014:
http://www.vancouversun.com/news/Douglas+Todd+persons+Canada+express+fear+loathing+crackdown/10118795/story.html
That is true, however the article also says:
Again, in areas rich with multicultural diversity one meets people from all over the world — the only ones whose other citizenship is a burden, forcing them to at least contemplate renunciation, and pay a huge fee for the privilege, are the citizens of the land of the free. How ironic.
@ All,
Best wishes to all for peace in our lives and victory in court in 2018!
“Ring the old year out,
Ring the new year in,
Bring us all good luck,
Let the good guys win!”
—Murray McLauchlan
I second the wishes expressed by @pacifica above. Happy New Year to all!
Thank you again for the excellent company of those at IBS, ADCS, ADCT, Maple Sandbox, et al. these past years here, and for the work and perseverance of our steadfast plaintiffs.
Thank you for all the personal sacrifices of time, money, and energy you’ve made sticking with this – which has I am sure had an impact on wellbeing and family. I am sure that the FATCAnatics, the US Treasury, and their local enablers did not anticipate such sustained and informed push back (I’m talking about you FATCA-Cons and FATCA-gLibs, craven surrenderers of Canadian sovereignty and betrayers of your fellow Canadians – wasting OUR Canadian taxpayer money on defending the indefensible and unconstitutional IGA that subjugates Canadians on our own home soil in order to satisfy a foreign nation).