May 31 2017 Canadian FATCA IGA lawsuit update: Plaintiffs ordered by Federal Court to turn over more detailed financial records to Government

As part of our FATCA IGA litigation in Canada’s Federal Court, Our three Plaintiffs previously provided financial information to the Government lawyers on their accounts. However, Government submitted a motion to compel Plaintiffs to provide additional very detailed financial information.

Our litigators felt that this request was unnecessary and unreasonable — and resisted the motion; however, the Case Management Judge sided with Government and ordered today, on May 31 2017, Plaintiffs to provide further documents.

Plaintiff Gwen responds to court order: “If the nosy-ass government hacks feel that they will find something that they didn’t know before, they will be sorely disappointed and this changes nothing other than to piss us off even more…”

Plaintiff Ginny comments: “I am disappointed with the decision that permits the government to invade our privacy in further minutia. This power play demonstrates to me that the government has no respect for privacy principles and will do everything possible to uphold their decision to support FATCA, and the importation of US law into our sovereign nation.

Their choice to ask for costs is another clear warning to discourage any citizens wishing to challenge unjust legislation. However, the three of us remain undeterred in seeking justice for all of us affected. Once again, I rely on my family motto: don’t let the bastards get you down.”

Plaintiff Kazia says: “Although I am disappointed with this outcome, I am hopeful that these next steps, however uncomfortable, will get us even closer to ultimately achieving a positive resolution in our favour. We will stand up for what is right.”

The documents that now must be turned over are:

Every document that reveals the nature and content of the following financial vehicles that the plaintiffs currently hold, or held after January 1, 2014 (domestically or otherwise):

o All bank accounts

o All mutual funds

o All brokerage and investment accounts, and

o All insurance accounts or plans that have cash value, such as life insurance contracts or annuities (including but not limited to whole and/or universal life coverage, etc.)

With respect to the 2014 and 2015 taxation years:

o Filed T1 tax returns

o T2 tax returns in respect of any businesses that the plaintiffs own or control, and

o Any related documentation, slips or schedules

The Court also requested more “particulars” on the Claim.

These include:

Each type of physical harm the Plaintiffs allege as been suffered; or will for certain be suffered if the impugned provisions remain operational by any one of them or by anyone else, as a result of the impugned provisions;

All mental or psychological harm the Plaintiffs allege has been suffered; or will for certain be suffered if the impugned provisions remain operational; by any one of them or by anyone else, as a result of the impugned provisions;

All financial harm, loss, or damage that the Plaintiffs allege has been incurred; or will for certain be incurred; by any one of them or by anyone else, as a result of the impugned provisions.

In addition, Court ordered Plaintiffs to pay $2500 in costs for the motion.

Plaintiffs do not have to pay these costs if we ultimately win the court challenge; however this order emphasizes again the personal financial risks Plaintiffs have undertaken on behalf of Canada and Canadians.

The Court has given Plaintiffs 60 days to provide the information and ordered that Government complete examinations for discovery within 45 days of the latter.

19 thoughts on “May 31 2017 Canadian FATCA IGA lawsuit update: Plaintiffs ordered by Federal Court to turn over more detailed financial records to Government

  1. nobledreamer-Tricia

    I am not the source of the reality that we have to prove harms. It was an issue in the first trial and it will be here. It is not we who are making it a problem. Please note:

    The Federal Court order asks for a list of all specific harms caused by the Canadian FATCA IGA enabling legislation, that contradict our Canadian Charter rights and nation’s sovereignty (our Claim) that have been or are certain to be experienced by our three Plaintiffs but also by “anyone else” (i.e., I interpret this to mean other Canadian residents).

    There is context not evident in this particular thread. Nononymous, (a Group 1 according to USCA definitions), consistently represents the fact that since he is not harmed by FATCA, there is no harm. This is clearly not true because not all US Persons have the same particulars as he does. Obviously to take this point of view would lead the lawsuit nowhere. We need help in framing the harms so they don’t just reduce to being caused by CBT FBAR etc. It is not an issue of contrarian, it just does not deal with what is at hand. It is not helpful.

    Reply
    1. WhiteKat

      Re: “Nononymous, (a Group 1 according to USCA definitions), consistently represents the fact that since he is not harmed by FATCA, there is no harm.”

      I didn’t take his comments that way, at least not the most recent ones at Brock. Nor did I see him as a self-centered ‘group 1’ type of person only concerned with harm to himself. If I was Nononymous I would be insulted by being classified as a ‘group 1’ incapable of seeing the “broader picture” that only those in ‘group 2’ are apparently capable of seeing. What am I missing? Am I misinterpreting his words? Do you think it is at all possible that you are not understanding his point?

    2. WhiteKat

      Re: “I am not the source of the reality that we have to prove harms. ”

      No doubt. What exactly is your point here?

    3. WhiteKat

      Re: “With regard to Nononyous, I stand by the comments I made. ”

      Nononymous, if you read here, there is no misunderstanding. You are clearly a member of “group #1”. Be careful what you say or you may soon be joining me over here. 🙂 No doubt it would be nice to be thought of as someone who has the “broader perspective” of the “group 2” people, but your attempts are “not helpful”. Perhaps stick to whining about how bad the Canadian government is or how bad CBT is (no one will disagree with you) or other harmless and/or frivolous topics (there are lots of examples of such at Brock). Not everyone can be a “group 2” member. Sorry.

  2. WhiteKat

    I realize I am conversing with myself over here, but I do that offline too….

    MuzzledNoMore writes: “A harm does not need to have taken place. It is enough that the Canadian government, by passing the FATCA enabling legislation, has given itself the power to treat certain of its own people in a different manner than other members of its society thus leaving them vulnerable to potential harms that are allowable under this legislation ”

    I hope you are right Muzzled! If a harm does not need to have taken place, then why is it even being debated (at IBS currently) whether or not sufficient, clear harm can be proven? Perhaps this explains the chasm between some commenters (who think concrete examples of personal harm are required) and the viewpoints of those more closely involved in the lawsuit. Perhaps, recent dialogue is all just a big misunderstanding on the part of the ‘contrarians’ and devil’s advocates, who in their defence, are not lawyers.

    Reply
    1. WhiteKat

      Bummer! I was all excited for a bit thinking that perhaps the contrarians and devil’s advocates might be a bit over the top with their ‘provable harm’ concerns. Patricia moon writes: ” @Muzzled & Mary M
      Ideally yes. But the harm thing is an issue.”

    2. EmBee

      I’m listening even though your much more nimble mind is running circles around mine. It’s never for naught to try to think things through as you are so capable of doing. I think one of the best places to think is outside the box and I admire lateral thinking. Perhaps harm is just a side road. Explore it for sure but get back on the main road which carries these signs — It’s About our Individual Charter Rights. It’s About our National Sovereignty.

    3. WhiteKat

      @Embee re: ” Perhaps harm is just a side road. Explore it for sure but get back on the main road which carries these signs — It’s About our Individual Charter Rights. It’s About our National Sovereignty.”

      Perhaps harm is the side road that leads to the main road. Patricia Moon writes: “I am not the source of the reality that we have to prove harms. “

    4. nobledreamer-Tricia

      Bummer! I was all excited for a bit thinking that perhaps the contrarians and devil’s advocates might be a bit over the top with their ‘provable harm’ concerns. Patricia moon writes: ” @Muzzled & Mary M
      Ideally yes. But the harm thing is an issue.”

      Sorry, took your comment to mean I was shooting down Muzzled’s idea.

  3. WhiteKat

    Interesting comment (at IBS) by USCitizenAbroad:

    “As always, the commenters on this blog are in two groups.
    “Group 1: Consider (whether accurately or inaccurately) the possible impact of the the FATCA IGAS on only themselves. (If they see no harm to themselves, then surely there could not be any harm.)
    Group 2: Those who see the issue in broader terms”

    I didn’t see any commenters who fit group 1. Don’t most ‘Brockers’ believe FATCA is harmful in at least “broader terms”, and wrong (for ALL Canadians)? But whether or not FATCA harm is clearly provable in the Canadian courts is (I think) what was being discussed in the IBS thread. Many of us, throughout all this madness, have come to know and fear a corrupt Canadian government, and so are not confident that what is just will actually be reflected in the outcome of the lawsuit, no matter how talented the legal team or how obvious the harms in “broader terms”. Thus the ‘devil’s advocate’ viewpoint is being expressed which I don’t think is meant to be a criticism of the lawsuit or the ADCS team, nor a denial of harm. But I can understand how it can raise the hackles of those who are closely involved in the lawsuit.

    Reply
  4. WhiteKat

    Nononymous writes: “All I’m really getting at with these occasional contrarian posts is that, to me, it’s a pretty high bar for a Canadian citizen in Canada to prove what I would call real practical harm due to FATCA at this point in time. (As opposed to some fairly abstract harm in the case of banking information being revealed to CRA for one class of citizen but not another.) Not that it isn’t worth trying to prove harm, but it’s not going to be easy. That I suppose is my perspective. (I also have the lingering concern that if the lawsuit succeeds we might be worse off without the IGA due to the reporting exemption for RRSPs etc, but that’s a separate issue.)”

    As a fellow ‘contrarian’, I get this. It’s not just about what is right. It is also about what is realistic. Personally I have donated generously to the Canadian FATCA IGA lawsuit and hope it is successful, yet I still believe that the best bet is to stay under the radar, or if you cannot sleep at night and can afford to, get compliant and get out. And if you think, like I do, that it is a very bad thing to be a ‘US person’ living in Canada (FATCA/CBT today, who knows what else tomorrow) and especially if you cannot afford to get ‘compliant’ and pay $2,350 USD to rid yourself of US taint, then advocate for ‘easier renunciation’. Oh yeah, and donate to the Canadian lawsuit as well (for round #2) because it IS the ‘right’ thing to do.

    Reply
  5. WhiteKat

    Re: “I am a US tax compliant US person who was FATCA reported by Canadian institutions where I signed a W-9. The harm I have endured is that it was not necessary to allow the CRA and IRS unprecedented access to my banking info (info that any other Canadian would not have turned over without a court order) to facilitate my tax compliance and reporting.”

    More devil’s advocating here. I’m not getting how “the harm I have endured is that it was not necessary…”. Is there a CLEAR harm? Perhaps someone can enlighten me.

    If one admits to being a US taxpayer, signs a W9, files US tax returns and FBARs, can one really complain if the Canadian government assists in this reporting? We do it now already for interest bearing accounts don’t we? – i.e. Canada sends details to the USA regarding investment income earned in Canadian accounts by US taxpayers (usually resident in the USA mind you).

    If however, said reported on person (via FATCA), did NOT agree they are a US taxpayer, that is a different story. But if you agree you are a US taxpayer, not seeing how one can argue harm in this case.

    Not trying to upset anyone. Just thinking…a dangerous pastime.

    Reply
  6. WhiteKat

    Nononymous at IBS writes: “I have a hunch that the number of non-compliant “off the radar” accidentals reported to the US is extremely small. ”

    Agreed. For the most part, only those who present themselves as being ‘US persons’ will be reported on. In effect they are through their own admission of being US persons, agreeing to their own fate. They are already complying as US taxpayers. If the US wants more information on its US taxpayers (people who willingly comply already), is the Canadian government in the wrong for supplying that information?

    Don’t shoot the messenger. I think CBT is horrific. And the Canadian government’s kowtowing is pathetic and spineless. Lord knows the stress so many of us have been under. Just playing devil’s advocate, as I think Nononmyous also does.

    Take away: don’t agree that you are US chattel. Once you do, that is how you will be treated. Don’t want your Canadian banking information sent to the USA? Then don’t be a US taxpayer, don’t say you are a US person. With any luck, the status quo in Canada will stay as is indefinitely or at least until there is a successful outcome to the Canadian lawsuit.

    Reply
  7. WhiteKat

    Was just reading with interest the dialogue (on this same post but over at IBS) between Nononymous and USCitizenAbroad. I can see why Nononymous’s comment can be frustrating or irritating to read, but it is thought provoking none the less. I don’t think Nononymous is saying that there IS NO HARM, but rather that given how ‘US persons’ are not diligently being ‘hunted’ (as in we can hide with little effort) it can be argued that there is no harm (a devil’s advocate position of sorts, not meant to delegitimize our outrage at our government’s cop out).

    It makes me wonder if the Canadian government and FFI’s PURPOSELY(i.e. to avoid certain loss in a lawsuit) are not forcing Canadians to prove they are not US persons but rather are giving them the option to hide their US person status, thereby avoiding easily provable ‘harm.’ In effect, we are only harmed (at least from a financial or privacy perspective) if we step up and say ‘here I am.’ It is that easy to avoid at least so far. Yes, a lie may have to be told, but essentially if we don’t admit to being a US person, then we are not treated as one by Canadian FFI’s or the Canadian government. Maybe if this was NOT the case (for example, passport required to open an account), the Canadian lawsuit might have more teeth as Canadians tainted with US birthplace would have no choice but to be deemed ‘US persons’ or live without a bank account (unavoidable harm to privacy and finances).

    Reply
    1. EmBee

      @ WhiteKat
      I don’t see how any bank in Canada (at this point) would ever demand a passport to open an account. It’s a travel document and if someone never travels outside of Canada they would/should not be required to have one … unless someday we need to present “Papiere, bitte!” to travel internally. (Heaven forbid!) Now I suppose they could ask for a birth certificate but as we know that would not identify all USCs and misidentify some. I think there would be objections to this, even from non-USCs. Anyway, for now, a driver’s license is enough to open an account and there’s no POB on that … yet. I think I’ve been harmed just having to think about this stuff.

    2. WhiteKat

      Hi Embee,

      Hopefully not. Regardless, my point is not to debate whether or not a Canadian passport will ever be required to open a bank account in Canada (as it is in some other countries) but rather that the Canadian IGA and the banks so far have made it easy to avoid harm, like Nononymous suggests. Had things been different (i.e. no option but to reveal US birthplace), the Canadian lawsuit potentially could be considered much more relevant (unavoidable harm) whereas now one could argue that we put ourselves out there to be harmed (i.e. admit we are US chattel) when we can just deny being owned by the USA by never mentioning where we were born or by answering ‘NO’ to ‘are you a US slave?’….err I mean US person. But I am no lawyer, just can see that argument being presented from a logical perspective. Not saying I agree with it either.

    3. WhiteKat

      ooops….the comments by Nononymous that I referred to were at the ‘Seeking a few additional witnesses…’ post at IBS, not the ‘Canadian FATCA IGA lawsuit update…’ post.

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