UPDATE: FATCA IGA litigation in Canada Federal Court: The guts of our Plaintiffs’ (Gwen and Kazia) arguments and those of the Government we oppose (for simplicity, “Canada”) can now be found in four court documents (that our supporters paid for) submitted between October 3 and December 13, 2018 (see below for some excerpts). The Court submissions can be found on our ADCS website.
The trial, which fleshes out the written arguments in orals in Federal Court, has been held the week of January 28, 2019 in Vancouver.
OUR TRIAL WOULD NOT HAVE HAPPENED WITHOUT THE GENEROUS SUPPORT OF BROCKERS. Somehow you found the monies to pay for this trial.
THE FEDERAL COURT DOCUMENTS THAT OUR SUPPORTERS PAID FOR:
1. October 3, 2018 Plaintiffs’ Complaint. We argue in part that Canada’s FATCA IGA legislation violates Sections 7, 8, and 15, of our Charter of Rights and Freedoms and the sovereignty of our country. Includes: ” …the principle of nonintervention between states is a cornerstone of the international order and intrinsically connected to state sovereignty; it is undoubtedly considered by all Canadians to be fundamental to their notion of justice that Canada will not expose them to enforcement of another state’s laws; and it is predictable and easily applied – simply, Canada may not allow other state to enforce their laws on individuals residing in Canada.”
2. November 21, 2018 Canada’s response to Plaintiffs’ Complaint. Many arguments including: Canada argues that it responded wisely to a threat from a bully:“…severe consequences to the Canadian financial sector, its customers and investors, and to the Canadian economy as a whole if Canadian financial institutions were unable or unwilling to comply with FATCA.” “…the plaintiffs have no standing..” because their accounts were not turned over, etc. “The CRS has been adopted by over 100 countries, including Canada…” “While it is acknowledged that the Impugned Provisions cause the seizure of information for the purposes of s.8, the plaintiffs do not have an objectively reasonable expectation of privacy in that information.” “The plaintiffs argue for the recognition of a novel principle of fundamental justice “that Canada will not deny its citizens the protection of Canadian sovereignty”. This proposed principle does not meet the requirements of a principle of fundamental justice as outlined by the Supreme Court of Canada.” “Avoiding the possibility of such catastrophic effects as a decline in GDP, labour income, employment, a depreciation of the Canadian dollar and a lowering of the standard of living of Canadians, are certainly sufficiently pressing and substantial to justify any minimal limitation on rights which may be found to a be result of the Impugned Provisions.”
3. December 7, 2018 Plaintiff’s response to Canada’s motion to strike out some testimony of our witnesses. Includes: “Canada seeks to strike the entirety of the Second Nightingale Affidavit based on a lack of relevance. The Second Nightingale Affidavit concerns the Exit Tax. As explained in the plaintiffs’ Memorandum of Fact and Law, the Exit Tax is relevant context in this constitutional case because it constitutes part of the burden faced by some individuals of avoiding exposure to the Impugned Provisions.” “The out of court statements referred to by Ms. Tapanila to which Canada objects are not adduced for the truth of their contents, but rather for the fact that they were made. The plaintiffs do not rely on the legal advice lay witnesses were given for the truth of its contents. Rather, the plaintiffs rely on the fact that these witnesses sought and paid for legal advice, in many cases from multiple lawyers and at significant expense. This evidence establishes that it can be onerous and costly for an individual to determine whether and how they may be affected by the Impugned Provisions – and if they are affected, whether and how they may avoid this by changing their immigration status under US law – as referred to in the plaintiffs’ Memorandum of Fact and Law, at paragraph 19. The specific legal opinions lay witnesses received are not relevant to this point.” [I will not provide a link to this short submission, which includes the names of witnesses other than that of Carol Tapanila, whose name is already in the public domain.]
4. December 13, 2018 Plaintiffs’ reply record for the Summary Trial. Includes: “This is the first time Canada has raised standing as an issue. It does not plead that the plaintiffs lack standing in its Amended Statement of Defence. Canada’s assertion that the plaintiffs’ rights have not been affected by the Impugned Provisions is incorrect. It is undisputed that the plaintiffs bear US Person Indicia, since they both have an unambiguous US Place of Birth. As a result, any Low Value Accounts they own now or in the future may be reported and shared pursuant to the Impugned Provisions. For Lower Value Accounts or High Value Accounts that they own now or in the future,the relevant FIs are required pursuant to the Impugned Provisions to obtain or review the plaintiffs’ Proof of Loss of US Citizenship.” “Further, or in the alternative, the plaintiffs have public interest standing to challenge the Impugned Provisions…Relatedly, in an earlier summary trial in this proceeding, this Court declined to grant costs given “the public interest involved in clarifying the scope of novel provisions affecting hundreds of thousands of Canadian citizens.” etc. “Canada relies on the expert report of Matthias Oschinski for the proposition that if all of Canada’s big banks did not comply with FATCA, and the Impugned Provisions were not implemented, Canada would face significant negative economic impacts. In fact, Mr. Oschinski agreed that the severity of those impacts was subject to a “great deal of uncertainty” More importantly…” “This Court has already observed that the Common Reporting Standard is different from FATCA in “significant ways”. Comparing the CRS and the Impugned Provisions – as Canada does in various parts of its argument – does not aid in the resolution of this case.”
“…the record before the court actually does not establish that the plaintiffs have US tax reporting obligations [!]. There is no expert evidence before the court that considers the plaintiffs’ immigration and citizenship status under US law. The plaintiffs are affected by the Impugned Provisions because they bear US Person Indicia, not because they are US citizens. This is important: it is the presence or absence of US Person Indicia – as defined in the Impugned Provisions – that determines whether an individual is affected by the Impugned Provisions, not their citizenship status under US law. As noted above, Canada’s submission unreasonably assumes that the two are perfectly correlated.” “Canada states that its primary purpose in enacting the Impugned Provisions was to “avoid the potentially catastrophic impacts of FATCA on Canadian financial institutions, their customers and the Canadian economy.” It says its secondary purposes were to (a) lessen “the burden of the direct application of FATCA on Canadian financial institutions and their customers” and (b) “obtaining additional automatic exchange of information from the US to Canada for Canadian taxation purposes.” Assuming that the first of the secondary purpose is different than the alleged primary purpose, we do not accept that lessening of an undefined “burden” would be a legitimate objective for purpose of s. 8 or s. 1. As to Canada’s secondary purpose (b), while it is supported by one paragraph of the preamble to the IGA, it is undermined by all other relevant evidence and the effect of the law…Third, and in any event, Canada’s articulation of its “primary purpose” is too general to be accepted. A purpose that is articulated in too general terms will provide no meaningful check on the means employed to achieve it. Not only is the threat of economic harm Canada refers to amorphous and highly uncertain, it is so general that it could justify any rights infringement arguably motivated by such a threat from a foreign state…Canada effectively maintains that it enacted the Impugned Provisions under duress from a foreign state. The Court should be very slow to accept this as a justification for infringements of the Charter. Canada is expected to defend the constitutional rights and freedoms of its citizens and not bargain them away or capitulate to threats from a foreign bully state. The notion that a foreign state could indirectly cause the violation of a Charter right in circumstances where Canada could not do so directly simply cannot be accepted. This is a deeply illiberal proposition and it would undermine the principle of the rule of law which explicitly animates the Charter. ”
“Further, even if a desire to avoid financial punishment by a foreign state is accepted as the actual objective underlying the Impugned Provisions, and is considered a valid basis to violate a Charter right, there is significant uncertainty surrounding (a) whether the United States actually would have inflicted that punishment if Canada did not abide, or would do so now if the Impugned Provisions were declared of no force or effect, and (b) the severity of the financial consequences if they were to materialize.” “Canada does not deny that the CRA will use Accountholder Information obtained pursuant to the Impugned Provisions for domestic tax compliance work, nor does it refute the plaintiffs’ contention that such use is unrelated to the objectives of the Impugned Provisions. However, Canada relies on Jarvis for the proposition that “once information is validly gathered by the CRA any reasonable expectation of privacy in the information is lost.” On this basis, it suggests that the CRA’s use of this information is not unreasonable. Jarvis cannot be applied to the present case in the manner suggested by Canada. First…”
“In asserting that the Impugned Provisions are minimally impairing, Canada states that it is not the court’s role to speculate about whether Canada could have achieved a better deal through negotiations with the United States. We disagree. It is Canada’s onus to prove that the Impugned Provisions are minimally impairing and if its claim is that it had no choice because of US demands then it must prove that by appropriate evidence.”
“Finally, the plaintiffs do not assert, as Canada suggests, a right “to avoid the consequences of choosing to violate US law.” The plaintiffs claim their Charter rights, and they claim that they have been breached by Canadian law for the reasons set out above.”
PM Trudeau is shuffling his cabinet today. It’s reported that the new Minister of Justice is David Lametti. Jody WIlson-Raybould is moving to Veteran’s Affairs.
https://www.cbc.ca/news/politics/liberal-cabinet-shuffle-2019-1.4976936
http://dlametti.liberal.ca/en/
Pacifica,
If Canada has a new Minister of Justice, then I believe that soon we will formally be suing Mr. David Lametti in Federal Court.
Technically we are not suing “Canada” or the “Government of Canada” but rather, the Defendants are: “THE ATTORNEY GENERAL OF CANADA [who is also the Justice Minister who vets legislation re: Charter] and THE MINISTER OF NATIONAL REVENUE”.
I suppose that Mr. Lametti will continue in the line of Justice Ministers of both parties (Conservative and Liberal) who feel that any violation of Charter rights of Canadians because of the FATCA IGA legislation — is justified.
Two weeks now to trial in Federal Court.
So, how long has it taken us to get to a FATCA IGA legislation Charter trial in Canada’s Federal Court?
A long time: Five years (February 2014) since we asked readers of this site whether they would be interested in funding the cost of a legal opinion on the merits of a FATCA lawsuit..
A comment made by a reader in that February post:
https://isaacbrocksociety.ca/2014/02/23/possible-charter-challenge-legal-opinion-needed-and-funds/comment-page-7/#comment-1149722
If there is winning, and I understand that the government would appeal any adverse court decision for them – & this could take a long time as well, then would it be expected that the government pay the legal fees? & if we lose, then we appeal, then…if remaining adverse for us then ADCS pays but then goes into administration?
If there is potential for money coming back then it could be used to fund new legal action?
The outgoing (demoted?) Canadian Minister of Justice, Ms. Jody WIlson-Raybould, has been the Defendant for several years now in our FATCA IGA lawsuit.
As Minister of Justice her job was to ensure that Canadian legislation does not conflict with our Charter of Rights. My understanding is that Ms. WIlson-Raybould was also responsible for Canada’s Justice lawyers who will argue in our January 28 Federal Court trial that the Canada-U.S. FATCA agreement, that our Plaintiffs object to, is a good deal for Canadians.
Ms. Jody WIlson-Raybould, responding to questions about why she is no longer Minister of Justice, has provided this summary-defense of her achievements regarding her protection of the Charter rights of Canadians, in a January 14, 2019 statement:
http://jwilson-raybould.liberal.ca/wp-content/uploads/sites/1565/2019/01/JWilsonRaybouldStatement.pdf
Paul Merrion of MLEX US Tax Watch comments on the upcoming Canadian FATCA trial:
Headlines – FATCA regime goes on trial in Canada Copyright© 2019 Ml ex, Inc.
Begins with:
Full text at: http://www.citizenshipsolutions.ca/wp-content/uploads/2019/01/MerrionFATCATrial.pdf
Discussion: http://www.citizenshipsolutions.ca/2019/01/15/mlex-reporter-pmerrion-writes-on-adcsovereignty-fatca-regime-goes-on-trial-in-canada/
Court submissions: http://www.adcs-adsc.ca/CourtSubmissions.html
— Just received word that our January 28 plus FATCA trial might be live-streamed. Not a done deal but it may happen.
Also, for those attending the trial, the court room number is unlikely to be known until just before the trial.
Live-streamed? That would be great … fingers crossed that it happens. There’s only 10 days to go until our country’s sovereignty and our individual human rights go before our justice system to either be reaffirmed or denied. I hope Gwen and Kazia are staying calm, cool and collected. There are a lot of people pulling for them and longing to see the right side win. Best wishes from me and Mr. EmBee who freed himself from US tax filing insanity and wants everyone to be free too.
Not sure if i could manage a live-stream with the time difference, but a video to watch after the fact would be a good thing.
@Stephen, I am sure that many of us would welcome the opportunity to be with you all in spirit via livestream. And as UnforgivenToo says, a video to watch after the fact would help those with time zone challenges.
Why are we in this FATCA trial in Canada’s Federal Court?
WhiteKat in a 2015 Brock post explains in a letter to Mr. John Baird, Canada’s Minister of Foreign Affairs:
“Canadian Cop” responded:
From: https://isaacbrocksociety.ca/2015/01/30/36421/
“I have done nothing wrong, unless to be born on US soil is a crime.”
Exactly!
Only 8 days to go. It would be wonderful to have a video of the trial but even if it isn’t possible I will
throughout its duration be thinking of …
–Brockers who created and continue to maintain this site
–Brockers whose research and general knowledge have enriched and enlightened this site
–Brockers who have come and will come in the future to this site seeking commiseration and advice
–Brockers who have drifted away from this site, hopefully in a wave of relief having obtained CLNs and not in a wave of despair thinking things will never get better
–Brockers who have helped fellow Brockers wrangle with the tangle of emotions and complexities which surround CBT/FBAR/FATCA and US citizenship
–Brockers who successfully obtained their CLNs, despite their understandable reluctance to renounce their US citizenship
–Brockers who have openly declared to never submit to US tax filing tyranny and thereby strengthen the resolve of others similarly inclined
–Brockers who sadly have passed away since this all began
–Brockers in Canada and many other countries who contributed financially to make this trial happen
–Brockers who contributed their precious time and valuable expertise to make this trial happen
–Brockers who selflessly and bravely stepped forward to be our plaintiffs, without whom this trial would not have been possible
… and I will be thinking of the legal team, hoping the court truly understands and appreciates their wise arguments for our plaintiffs’ case.
SURGITE!
WE are the BROCK!
@Embee, you said it!
Brock on!
what embee said 🙂
finally our day in court
each and every one of us have had to walk the plank and make a decision as to what it right for us and us alone and each decision in unique unto said situation.
although we are united in a common foe. the big bully to the south.
keep the faith…..it has been a long 5 years to reach this point.
38,612,619 views of this website
i remember when it was around 2,000,000 and thought wow that’s a lot of views
brock we have come a long way baby!!!
@ mettleman
I think several hundred thousand of those views might be one viewer … moi. And speaking of “moi”. I hadn’t dropped into the Café Moi for a long time until a few days ago. It looks like John Hanson hasn’t written any new posts since last August. He was among the best of the mosquito swarm which used to sweep into comment on articles written about CBT/FBAR/FATCA. He’s a good writer and I hope all is well with him. Here’s a sample of his writing …
https://cafemoi.wordpress.com//?s=renouncing&search=Go
“finally our day in court”
Yeah, here’s hoping that means something.
In the US, our day in court would mean our day in an institution that’s even more corrupt than the IRS.
Don’t forget that banks can still comply with FATCA without an IGA; and then there would be two parallel classes of banks; and those with no assets in USA would have no reason to comply with FATCA and would have a competitive edge with lower costs; whilst those that choose to comply would be able to invest in USA and have correspondent bank accounts. There are countries without a FATCA IGA and each bank decides.
It’s not whether you win or lose, it’s whether the court rules correctly or incorrectly.
The Canadian Federal Court Justice has now asked lawyers for both sides to discuss, at the January 28 trial, a prior Supreme Court ruling. The ruling, as I understand, deals with “jurisdiction”.
The split decision (5/4) ruling can be found at: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16279/index.do
A discussion of the ruling: https://www.administrativelawmatters.com/blog/2016/12/12/when-is-a-court-not-a-court-windsor-city-v-canadian-transit-co-2016-scc-54/ at which this is an excerpt:
See also discussion which contains the following:
From: http://www.thecourt.ca/when-court-jurisdiction-meets-statutory-interpretation-windsor-city-v-canadian-transit-co/
@ Stephen Kish
Forgive me but I don’t really understand this jurisdictional thingy and how it might affect our trial’s outcome. It would take one of Canadian Ginny’s clear interpretations for me to get the gist of it. (Most often I end up in a brain fog whenever I try to navigate my way through court documents.) All I can do is cross my fingers that the legal team obtains whatever jurisdictional result is best for our plaintiffs.
Although I think it’s good that Justice Mactavish has served on the Canadian Human Rights Tribunal, she did rule against Jeremy Hinzman and Robin Long (American Iraq war resisters seeking refuge in Canada) and that worries me because she placed the US state above the US individual.
https://en.wikipedia.org/wiki/Anne_Mactavish
If neither party has suggested that venue for the ADCS to sue the MNR on the subject of the IGA should be provincial courts instead of federal courts, then this court has raised the issue sua sponte.
What would happen if some provinces uphold the Charter of Rights but other provinces uphold the IGA?
Here’s an offensive, loaded question, but please consider it on its merits. Suppose the Alberta government wanted to argue that transfer payments to Quebec should be invalidated. Would an Alberta court be the correct venue?
The first part of the test requires that a federal statute grant jurisdiction to the Federal Court. Section 23 (c) grants jurisdiction to the Federal Court when “a claim for relief is made or a remedy is sought under an Act of Parliament or otherwise”, that is, when the claimant is seeking relief under federal law.
…the Charter is a federal law. Parliament cannot negate Charter provisions by affording insufficient statutory remedies.
[10] The Company and the City both appealed the Committee’s decisions to the Ontario Superior Court of Justice.
…the current matter is not before any provincial court.