UPDATE SEPTEMBER 19, 2015: SEE ALSO DISCLAIMER AND LITIGATION UPDATES.
[This post, which began in May and having over 1000 revisions and 2000 comments, is being retired from service and updates. It lived through the success of reaching a total of $500,000 in donations from our kind, dear supporters who had little money to give, the hope and disappointment with the summary trial decision, and the certainty that we are now finally moving on to the Charter trial.]
CANADIAN CHARTER TRIAL UPDATE:
— We have instructed the Arvay team to prepare for the “Constitutional-Charter” trial. This means that our focus now, as it was in the beginning of our lawsuit, is on the Charter trial.
Unless there is a new expense in the future that we have not anticipated, the monies from your donations will be sufficient to take us through the “constitutional-charter” trial in Federal Court. However, to pay other legal bills we will need additional donations from our supporters, and a request for donations will appear on another post soon.
OUR LITIGATION HISTORY:
One year ago, on August 11, 2014, Litigator Joseph Arvay filed a FATCA IGA lawsuit in Canada Federal Court on behalf of Plaintiffs Ginny and Gwen, the Alliance for the Defence of Canadian Sovereignty (en français), and all peoples.
Because of a Government delay we initiated a “summary trial”, using a portion of the arguments, which offered the possibility of preventing private banking information from being turned over to the IRS before September 30, 2015. See Alliance’s Claims, our Alliance blog, and AUGUST 4-5 SUMMARY TRIAL FILINGS in LITIGATION UPDATES.
Volume 1 link produces an error, whether from IBS or the ADCS website.
I get four files to save.
I’ve got all four volumes downloaded. I’m actually understanding some parts … others not so much. The Notice of Motion is surprisingly clear. Anyway, I know I like this part:
Point (c) has Charter vibes, right? I’m too tired to read much tonight but I just want to say THANK YOU JOSEPH ARVAY and everyone involved with this litigation.
@Barbara – I had to change the Volume 1 link to a redacted version, so you probably clicked it just as I was changing it. Should be fine now.
@Dreamer,
For what it’s worth, I understood your point that equating CBT to an issue of Canadian sovereignty, is drawing a very long bow indeed. And to everyone else; sorry, I calls em as I sees em. We have all been under a lot of pressure because of this abomination from Washington, and have probably done more debating in recent times than all times preceding, it’s getting maybe a little too easy to get angry at dissenting opinions. That’s my two renminbi.
Btw I am neither a Canadian nor in my opinion an American, but I have been happy to donate to your just cause on several occasions, and hopefully will do so again.
Having said that, I can also see the point that the U.S. removing money from the economies of foreign countries because of their outrageous tax laws is a definite affront to those countries sovereignty.
I’m glad everyone has gone off to bed because I find myself debating myself and am getting a little angry at my dissenting opinion. After a slightly heated discussion with myself, I have come up with an official opinion. CBT in itself does not violate Canadian sovereignty. However, the enforcement of CBT to steal money from the Canadian economy, and an IGA to overlook privacy laws in order to facilitate FATCA, are both definitely assaults on Canadian sovereignty. That’s my opinion, and as soon as I understand it, I’m sticking with it.
@ Proud Aussie
I’m still up but I must be very tired because that seemed to make sense to me. You can’t lose when you debate yourself.
Thanks EmBee,
We’re happy someone was listening.
@ProudAussie. I might be in your time zone!
I’ll dissent on the affirmative: CBT represents infringement on Canadian Sovereignty.
The Canadian government sets policy [think any tax policy, in this case of example] to help residents save for their retirement, and provide option of a tax deferred retirement account to help residents achieve this end. Then US taxation policy penalises the account neutralises any benefit, and adds penalty on top for Canadian residents (who are US persons). Thus the Canadian government internal policy for its residents gets undermined by an outside power – the US. Yes it is interference into Canadian sovereignty and internal affairs.
I reference the thread of Sovereignty on IBS today.
@ProudAussie – did you see my letter to Kim Beazley on the Australian FATCA page?
Just read the packet
Very clever
Though non Canada brockers need to see this go to a charter challenge to help in the eu
@JC
Yes, we are on the same time zone unless you guys are on daylight savings down there. I totally agree that stealing from pension funds constitutes a violation of sovereignty. My muddled point was probably more one of semantics, in that it is not CBT, but rather the attempts to implement and enforce it that cross the line of decency. CBT has been around for a long time, it is only recently that it’s being used as a crow bar to break into foreign strong boxes. An employee can go to work for years thinking that he’s underpaid, it’s only when he puts his hand in the till that a principle has been violated. The IGAs forced on countries are a clear violation of sovereignty, and a logical place to attack. CBT itself will have to be killed in the US, but the victim countries can become non cooperative.
I just read your letter to Kim Beazly, thank you so much for writing that for all of us. Kim always seemed a reasonable guy, so who knows? I’ve been attempting to put a letter together in my head for my local member, who also happens to be the deputy prime minister, but haven’t come up with much so far.
@GwEvil: Yep, links working now. Though I’m sorry to inform you that the redacted parts are insecure. A simple copy of text in the PDF files, then pasting into a word processor reveals all information. If you have a copy of Adobe Acrobat, you need to apply security measures to prevent copying text. If you need help with that, contact me.
And now for some hefty bedtime reading…
Barbara, thanks for the alert. We will fix this.
I see a problem already on just the first two pages.
The motion is for
1
a;
b; or
c; and
d.
The conjunctions are ambiguous. Does OR apply to a, b and c or only b and c?
@george I agree …. A finding by the Canadian Courts that FATCA abuses the Constitution / Charter of Rights is vital for those of us in jurisdictions outside Canada which jurisdictions never the less have Charters of Rights similar to Canada’s one. A mere finding that the FATCA / IGA contravenes Canada’s Income Tax Act is not nearly enough.
@george – I see this as affecting at least all British Commonwealth countries and I suspect many others around the Globe.
@nervousinvestor, I do not fault Joe Arvey and ADCS if they can slay the beast with this approach. To be honest its brilliant legal work and worth every Loonie paid.
The appeal of a Charter Challenge to me as a non-Canadian is that would have laid fertile groundwork that could be used in the EU and elsewhere that the IGAs are a basic rights violation treating citizens differently because of an immutable characteristic.
Having said the above and read the document as someone very familiar with the legal profession, he might just pull it off on what some may say is a technicality. But frankly the Canadian MPs rammed this through without crossing their t’s and dotting their i’s. Its like the Canadian version of Obamacare which was drafted very poorly.
Where does a victory in Canada leave us in the EU and or Commonwealth? There may be nuggets of use but not like that of a Charter victory. To be honest I wanted the Supreme Court of Canada to rightly state that the IGA treated otherwise identical Canadian Citizens differently and illegally!!!
So yes, the wind has been knocked out of my sail with this though I am happy for our fellow Canadians who may very well get some relief.
@George
My layman’s understanding:
The plaintiffs’ original claims (Aug 2014) addressed primarily Charter violations.
The plaintiffs’ amended claims (Oct 2014) added claims against the US-Canada Income Tax Treaty.
The plaintiffs’ filing for a summary trial (May 2015) proposed that the summary trial address only the claims related to the US-Canada Income Tax Treaty and related matters relevant to the Income Tax Act–asking for, among other things, an injunction preventing disclosure of data–but left aside the question of the Charter violations for a future full trial (Spring 2016?)
Thus the summary trial is an excellent strategy because it may provide a way to quickly (quick by legal standards, that is) prevent the transmission of the data to the CRA/IRS.
However because the plaintiffs’ original statement of claims specifically asked the Court to opine on the constitutional issues–and those claims remain in the amended statement of claims–it doesn’t seem possible–to my layman’s understanding–to fully resolve the original claims in the summary trial. Thus–although a win in the summary trial would be a huge initial success in the first big skirmish–it won’t obviate the need for a full trial.
What I’m not certain of is whether the $500,000 (of which $400,976 has been paid to date) gets us only to the summary trial or all the way to the full trial.
If I’m mistaken on any of this I’m sure others will correct me.
@TriciaMoon @GwEvil @StephenKish
BTW thanks for posting the recent filings last night. I didn’t have any trouble downloading the first two volumes. The volumes are–well–voluminous and I haven’t gotten to the third and fourth yet.
For me, one main benefit of the Summary Trial is that it will generate urgently-needed publicity. The press tend to report on an issue mostly when it is actually in court – the steps leading up to trail are usually not as “newsworthy”, unless it is a sensational matter.
This Summary Trial may also attract more donors for a later Charter-based action.
If the Summary Trial is successful, the Charter arguments do not vanish; in fact they may be even more compelling in the light of a victory based on the technical arguments. And a favorable judgement will add to case law precedents that may effect similar tax sovereignty matters in the future.
The main thing: this is the FIRST & ONLY ANTI-FATCA ACTION IN ANY COURTROOM IN THE WORLD. And that is good start.
@dash
There is language in the filing that alludes further litigation on the other matters may not be necessary if the court strikes down the Iva in the summary trial
To be honest that makes perfect sense ad litigation would then be moot
Besides I doubt there would be much funding after an initial victory as that would be kiicking a dead horse at that point
@George
The thing is–again, just my layman’s understanding here–that the Income Tax Act can easily be changed by any party with a majority government. The Charter is harder to change.
Also what happens if we win the summary trial and then decide further litigation is unnecessary? Can the government then appeal their loss from the summary trial after we’ve already discarded some of the cards we are holding dropping the Charter based claims?
Anyways–I agree that the most important thing is that we are now finally going to see the first–and to date only–real challenge to FATCA in court. I’m sure these longer term issues will be resolved in due course.
Holy S**t Robert Wood’s C.V. is 137 pages long! Hope nobody has to read it. Hope we aren’t paying by the page.
@George @Dash @ Wondering et al
I see this Submission / Motion as an excellent piece of work in so far as it goes.
I suggest that you read Volume 1 Page 19 of Para 83 – I see this as exceedingly dangerous. This seems to almost be a proffer to surrender the further litigation based on Charter issues if these motions find favour with by the Court. Am I incorrect ?
This may well cause good media coverage, cause a positive finding obstructing the flow of data to the US and cause a finding aiding the Canadian People caught in this Act of Tyranny. It may not give the fundamental trashing of FATCA / CRS that is needed to reverse this dangerous trend in world government.
As for other comments, I saw several items or language that appeared to me as a lay person as “editing errors” or “omissions” whilst scanning through the Volumes …. but far be it from me to opine on these and their significance if any at all. Examples of these ? I would have to start from the beginning again and reread noting when these appear. I am most worried about the item noted in the preceding paragraph.