“…The government of Canada has a responsibility to stand up for its citizens when foreign governments are encroaching on their rights…We believe that the deal reached between Canada and the U.S. is insufficient to protect affected Canadians…” June 2015 Pre-Election statement of Mr. Justin Trudeau (now Prime Minister of the Government we are suing) to a constituent
May 13 2017 Canadian FATCA Litigation Update:
SUMMARY TRIAL MOTION has now been submitted on Constitutional/Charter issues. We are finally moving closer to trial and our Vancouver litigators have now served and filed in Canada’s Federal Court a “Notice of Motion for Summary Trial”.
As detailed in this brief motion (see link) this is a pleading to the Federal Court of Canada for a summary judgement we are seeking on the Constitutional-Charter issues.
We argue in the motion that the Canadian legislation enabling the FATCA Intergovernmental Agreement (IGA) violates Canada’s Constitution Act (by forfeiting Canada’s sovereignty and facilitating the extra-territorial enforcement of a foreign state’s taxation and tax compliance regime on Canadians) and Canada’s Charter of Rights and Freedoms (Sections 7, 8, and 15).
Some of you do not consent to be “U.S. Persons”. There is this statement in the Motion:
“The contours of United States citizenship and the definition of US Person are matters of United States law and/or policy and are subject to be changed by the United States at any time.”
There is also this:
“It is a principle of international law that every sovereign state has the right to conduct its affairs without intervention by other states (the “Principle of Non-Intervention”). The Principle of Non-Intervention is at the core of the international legal order and is a corollary of every state’s right to sovereignty, territorial integrity and political Independence. The Principle of Non-Intervention is an element of the unwritten constitution.”
Will the Federal Court of Canada accept this Constitutional argument?
This motion is NOT the main, detailed legal submission (i.e., where all of the case law is discussed, etc.) which will be filed much closer to the hearing date (yet to be decided).
AFFIDAVITS. You will notice on pages 22-23 a long list of affidavit titles. Because of a technical issue related to the litigation, it is not possible to publish the text of these affidavits at the present time.
Some of the affidavits include those we previously submitted and those Government submitted – which we feel will help our case.
There are also expert reports from three witnesses (Ryan Liss, Roy Berg, Kevyn Nightingale) who were selected by our litigators to provide an expert opinion based on our litigators’ assessment of their expertise and experience.
In addition, there are affidavits listed from lay witnesses.
Our litigators made a strategic decision on the selection of specific lay witnesses for the trial from the larger group of volunteers. I thank the lay witnesses and all witness volunteers for their courage and commitment to push for return of Canada to Canadians.
LIKELY NEXT STEPS. On May 19, 2017 there will be a teleconference with Government, Case Management Judge, and our side to deal with the Government Motion to compel further documents from the three plaintiffs (we oppose the motion).
After the ruling, Examinations for Discovery of the three expert witnesses and the plaintiffs will be scheduled and conducted. Our lawyers will likewise examine the Attorney General’s witnesses. It is also possible that the Attorney General might examine our lay witnesses. We currently do not know if they will elect to do so.
Upon completion of the all examinations of the parties, and after filing all required submissions, we will await a trial date to be set by the court. Trial dates are dependent on the availability of Justices and court (backlog) schedules.
I know that the slow pace of our litigation is frustrating. Thank you for your continued support and kind thoughts.
Stephen Kish
Canadian FATCA IGA litigation update
Fingers crossed. Toes too.
If Canada repeals the IGAs then it would seem to me that the repeal FATCA lobby would be given a huge push as well.
Maybe I have a seriously failing brain and didn’t understand much about previous motions etc. But is there not more mention of the Charter in these grounds? I begin to feel a tinge of hope…….!!!!
Perhaps there’s method to Arvay’s madness.
Thanks for the posting, Stephen. It’s a really important case on principle and of course for those directly affected. I appreciate being able to follow progress of the case.
“4. The United States automatically considers anyone born in the United States to be a citizen as well as anyone born outside the United States if both of that person’s parents were United States citizens at the time of birth, the parents were married at the time of birth, and at least one parent lived in the United States or its territories prior to the birth (“US Person”).”
Actually the US considers anyone born outside the US a citizen if either parent was USC at the time of birth and had lived in the US for five years, two since the age of 14. Doesn’t have to be both parents, and the parents don’t have to have been married. Lots of people fall into this category. Maybe this is stated elsewhere in the Notice of Motion and I just missed it.
https://www.uscis.gov/us-citizenship/citizenship-through-parents
@iota
I think the grounds of the motion have to address the situation of the plaintiffs, not necessarily reflect every possible description. Otherwise, the documents would be unwieldy.
Perhaps they should include the info regarding single parents because this happens a lot in La Belle Province.
@Patricia “I think the grounds of the motion have to address the situation of the plaintiffs, not necessarily reflect every possible description. Otherwise, the documents would be unwieldy.”
Yes, I see. Thanks for the explanation.
Knowing that Ginny (Brock resident, legal expert, plucky plaintiff) has full confidence in Joseph Arvay’s team, I have to say, as merely a Brock resident, that I have great faith and hope in what lies ahead and eagerly, yet with as much patience as I can muster, await that future update when Stephen tells us when the court date has been set. This keeps reverberating in my brain: “…every state’s right to sovereignty, territorial integrity and political Independence.” Surgite!
It will be the Domino Effect, once one falls,………. | | | | | | \ <- Boom
Was looking for info on the principle of ‘Non-Intervention (Non-interference in domestic affairs)’ which may be what is referred to in the document at the link https://netorg82979-my.sharepoint.com/personal/information_adcs-adsc_ca/_layouts/15/guestaccess.aspx?docid=19379d650265943e79dc6a3d5c7e90142&authkey=AeC1bZ0cc-kgWk9ySLyBplQ in the post ;
For anyone interested, this might be useful;
https://pesd.princeton.edu/?q=node/258
http://www.judicialmonitor.org/archive_spring2014/generalprinciples.html
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1434
Try searching for;
” “Principle of Non-Intervention” AND banking
or
“principle of non-intervention” AND economic
Thank you, Stephen Kish, for all the behind-the-scenes work and now posting this (and confirming that my Witness Affidavit will be among those used as an example of harm to those like my the members of my family).
@stephen arvay,
Yes, which it should have been long ago, Canada leading by not signing an IGA in the first place! For me, please – please that it will be, the Domino Effect shall be…
This is great news, Stephen! Thank you for the update. There is such thirst for action in this community and I see this news as real headway! 🙂
A thousand thanks for all the IBS Canadian lawsuit team who are putting themselves in harm’s way on behalf of all of us. This is the most carefully structured action in the World so far and might be the first nail in the coffin of the US feudal abuse of its citizens. Surgite indeed.
Grateful thanks as always to the brave plaintiffs who’re being harassed by the Canadian government in its willful attempts to defend the indefensible FATCA IGA – an offense against the Charter and constitutional rights of you and those in Canada. I am thankful that you have agreed to carry this burden over so long on behalf of the rest of us – in Canada and around the globe. Best wishes to you. We cannot know what this has been like for you, but hope that you know that you are always in our thoughts.
Thank you to the legal team and the organizers and sustainers of the ADCS challenge. Without you there would be no hope of justice and recourse.
It is no mean feat what you are doing as the Canadian federal government continues its fawning obeisance to the US overlord – dedicated to paying tribute to the foreign emperor – subverting our local laws and offering up our fellow citizens and residents, their data and privacy, and afflicting their peace of mind and their right to quiet enjoyment of life in Canada as citizens and legal residents – at our Canadian taxpayer expense.
Latest news searches on FATCA reveal what was expected years ago, outcry over lack of reciprocity. I don’t know how that will affect Government of Canada if at all.
“The Impugned Provisions breach s. 8 of the Charter in that they require or authorize Canadian Financial Institutions to collect Accountholder Information relating to US Reportable Accounts and disclose that information to Canada which will or can in turn use that information for domestic tax law purposes and disclose that information to the United States and its various agencies. The Impugned Provisions do not provide safeguards to monitor and limit the disclosure of information.”
BRAVO!
Well said, badger.
Tom,
At present, for practical reasons related to our litigation, I am more concerned with the Federal Court of Canada’s position on whether our litigators are entitled to know how many (etc.) accounts were actually turned over by IRS to Canada as part of this so-called “reciprocity” deal Canada made with the U.S.— and the nature and the (tax) consequences of the reciprocal account turnover.
Canada Revenue Agency (CRA) responds to litigators’ request: “On the advice of counsel. I am unable to answer [this reciprocity question].
The Crown attorney then formally objects to the question: “The Defendants [Government] object to [our request for this reciprocity information] and refuse to answer it because doing so may require disclosing sensitive information or potentially injurious information as those terms are defined in s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5.”
Bubblebustin and Badger,
This question might be relevant to your point:
“Q. #37: How many Canadian residents does the CRA anticipate will have their tax assessments or tax status affected in any way as a result of the CRA obtaining information regarding US Reportable Accounts from Financial institutions in Canada pursuant to the IGA Implementation Act? Please provide the best available estimate.”
CRA answers: “In response to Q. #37, the CRA is unable to provide an estimate as requested at this time in part because it is not possible to speculate as to whether any such information will have any impact on any assessment or status at this time.
The Crown attorney responds more bluntly in Crown attorney fashion: “Q. #37 is unreasonable or unnecessary and would be unduly onerous to try to calculate an answer.”
[How would you interpret the above response from CRA…?]
Q37 answer: Funny! Untold harm is indeed difficult to calculate. But how can it not be relevant when it is precisely the protection of the Charter which would have avoided it? Oh well, I suppose when you’re that deep in lies and bad faith, going a bit deeper isn’t going to hurt.
Give it another year and a bit more dairy and timber trouble and you will see all the same people clamouring on how they knew all along how bad it was and how they were trying so hard to help us. Hopefully…
And nice to hear that the French will have their own sovereignty lawsuit soon, inspired by ADCS. Nobody knows Macron’s position on the subject but French companies have been hit hard by america’s overreach so he might be open to the subject.
@Stephen, re the CRA and Crown Attorney respectively;
“…it is not possible to speculate as to whether any such information will have any impact on any assessment or status at this time.
The Crown attorney responds more bluntly in Crown attorney fashion: “Q. #37 is unreasonable or unnecessary and would be unduly onerous to try to calculate an answer.””
Yet, without any of that requested information referred to above, about any impact on any assessment or status, and unwilling to even undertake any calculations, our federal government’s intent is to continue to cede sovereignty and autonomy and divert good Canadian taxpayer dollars from providing us with the benefits of citizenship and residency, for however long it takes in order to assert, defend and uphold the indefensible, and fight its own Canadian citizens and taxpayers – denying the Canadians they are sworn to serve their Charter and constitutional rights – which they are subverting in order to assert, defend and enable the right of a FOREIGN government to extraterritorially extort our local data and claim our local assets for a foreign treasury.
How tragically absurd.
The CRA’s position; we abuse your tax dollars to assist another treasury, for nothing in return of value that we didn’t already have, and we will stonewall CRA customers with impunity to do so. We have no information, but even if we did we wouldn’t share it with you – our customers, taxpayers and in theory, our employers.
How does the CRA square what is happening with their ‘Integrity’ Statement?
“Our Integrity Statement”
“Integrity is at the very core of the Canada Revenue Agency (CRA). It shapes and connects everything we do.
Our culture of integrity brings out the best in our organization: the best in us, and our processes, work, and interactions. It has a powerful and positive impact that expands beyond the CRA as we collaborate to improve the economic and social well-being of all Canadians, and the broader communities in which we live and work.
The CRA is an integrity-based organization that balances clear rules with strong values. We build trust from the inside out, starting with each other, and extending to our partners and the public. We strengthen our culture and lead by example each time we speak up and address situations that do not reflect the way we conduct business, or our values.
We safeguard taxpayer information and privacy, public funds, programs, data, and systems and make sound and responsible, integrity-based decisions. We value stewardship.
We recognize the importance of following our Code of integrity and professional conduct, and all CRA policy instruments. We know that there are serious consequences for breaching the Code. We uphold the law and our standards.
We strive for excellence through quality assurance, continual improvement, diligence, and focus on service and compliance. We are professional.
We work together to create healthy workplaces by interacting with civility and respect, embracing diversity and inclusiveness, and making efforts to ensure people feel heard and valued. We do this to support the physical and psychological health, safety, and well-being of all CRA employees, managers, and executives. We show respect.
We look for mutually beneficial solutions, support each other in “doing the right thing”, appropriately share information, and engage in meaningful consultations, reflection, and dialogue. We collaborate.
We are the CRA, and this is how we work.”
http://www.cra-arc.gc.ca/crrs/wrkng/cdthcscndct-eng.html
@ badger
How does the CRA’s Integrity square with sharing vital data with our litigators? Easy. “Integrity” is a round hole and “sharing” is a square peg with sliding dimensions. Sharing slips on through CRA’s integrity hole when the IRS demands personal, private, financial information about Canadian citizens but jams up on the rim when Canadian citizens request data on how much information is being transferred to the IRS. Finding this CRA statement is another good find for you, badger. Perhaps whoever wrote it did it tongue in cheek. “We safeguard taxpayer information and privacy, public funds, programs, data, and systems and make sound and responsible, integrity-based decisions.” Yeah, sure.
Trudeau could bring into NAFTA renegotiation.
Thanks for this update.