We argue that the FATCA IGA enabling legislation is contrary to sections of the Income Tax Act and the Canada-US Tax Treaty. These are “technical” arguments that we feel are appropriate for a summary trial. Charter considerations could not be used in the summary trial (but would be used in the full trial if required).
“The Tax Treaty Issues [raised in the summary trial] are discreet and distinct from the other issues raised by the plaintiffs. The plaintiffs’ other grounds of complaint involve division of powers and Charter breaches. These issues are factually and legally distinct from the operation of the Canada-US Tax Treaty and its relationship to the Impugned Provisions. As a result, the matters addressed in this motion [the summary trial] will not be re-litigated in the Charter and division of powers aspect of the plaintiffs’ claim.
The Tax Treaty Issues will need to be adjudicated even if they are not decided summarily. If this Court finds against the plaintiffs on this summary trial motion, the range of issues to canvass at [full] trial will nevertheless be significantly narrowed. If the plaintiff prevails [there are many "depending ons"] in respect of its claims in this motion, it will likely be unnecessary to proceed with the other issues raised by the plaintiffs.”
The motion includes a request for:
An order in the nature of a permanent prohibitive injunction preventing the disclosure of taxpayer information to the United States by the Minister of National Revenue and her authorized representative(s) where:
a. the taxpayer information relates to a taxable period in which the tax payer was a citizen of Canada;
b. the taxpayer information is not shown to be relevant for carrying out the provisions of the Tax Treaty Act or the domestic tax laws of Canada or the United States; or
c. the disclosure of the taxpayer information subjects United States nationals resident in Canada to taxation and requirements connected therewith that are more burdensome than the taxation and requirements connected therewith to which Canadian nationals resident in Canada are subjected.
Our summary trial will be heard at Federal Court, 701 West Georgia Street, Vancouver, British Columbia, commencing on Tuesday, August 4, 2015 at 9:30 a.m. for a maximum duration of two days.
UPDATE On May 8, 2015, the Arvay-Gruber team filed the comprehensive Memorandum of Fact and Law.