Maple Sandbox Historical Archive – 2012 to 2016

We are all waiting for Justice Martineau's decision on our Canadian FATCA IGA summary trial

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January 25, 2015

UPDATE SEPTEMBER 13, 2015:
SEE ALSO DISCLAIMER AND LITIGATION UPDATES.

CANADIAN SUMMARY TRIAL AND U.S FATCA LAWSUIT UPDATE:
— Canada Revenue Agency confirms to us and Justice Martineau (via Government counsel) that it intends to begin transferring private banking data of some Canadian citizens to U.S. IRS on September 23, 2015.
— Justice Martineau is expected to provide a decision on our summary trial before that date — I predict on September 21, a Monday.
We will do our best to provide you quickly with the decision when it is rendered. It is possible that there might be only the “bare bones” of a decision, with reasons to follow later (because of the short time Justice Martineau had in reaching a decision before September 23).
Please be patient before and after the decision — and keep the faith.

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.
The summary trial took place on August 4-5 2015 and we expect to have a decision before September 23 2015.
See Alliance’s Claims, our Alliance blog, and AUGUST 4-5 SUMMARY TRIAL FILINGS in LITIGATION UPDATES.

103 responses to “We are all waiting for Justice Martineau's decision on our Canadian FATCA IGA summary trial”

Ginny Hillis

August 3, 2015

Thanks you Lynne for your warm welcome. I feel comfortable in this sandbox.

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OutragedCanadian

August 4, 2015

Oh man, my heart started pounding when I read the latest. I am completely tapped out. I hope there is an angel investor out there somewhere willing to invest in upholding our constitution.
Gwen and Ginny ARE making history and ARE putting themselves out there, at risk, for the rest of us. Although that’s a debt I can never repay, I will never forget it. I’m too chicken to come out in the open much less stand up in a legal court. They are brave, brave ladies.

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Ginny Hillis

August 4, 2015

Upate on summary trial: Blaze has lost her internet connection, so she has me to post this:
The summary trial has now begun. The judge has ruled on the motions 1) DENIED the Government’s request for an adjournment and 2) has reserved his decision with respect to the admissibility of the supplementary affidavit of Prof. Christians.

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Ginny Hillis

August 4, 2015

TRIAL UPDATE:
Joe Arvay is now explaining the onerous tax penalty system that Canadian citizens and residents would fall under once their information becomes known to the US tax authorities under FATCA to the judge.

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Ginny Hillis

August 4, 2015

The trial Judge has just extended the hearing until 5:30 pm ( BC time). Normal time is 4:30. Gwen reports the Judge is very savvy and engaged asking counsel many questions. And that our lawyer’s argument is very smooth despite all the material he is trying to cover.
Blaze’s internet connection is still down.

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Lynne Swanson

August 4, 2015

My Internet is back but I have not heard from Stephen.
Ginny is getting updates from Gwen so she has agreed to post them here.

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calgary411

August 4, 2015

From Stephen Kish email, 5:02 p.m. (Power outages here, but back.)
Arvay is explaining how IGA contradicts tax convention. Very technical.
Much attention given to a clause 8 in which Canada cannot provide assistance in tax collection for Canadian citizens.
Apparently this clause was insisted upon by the US.
Arvay points out that the whole point of Fatca is to enlist the IRS in identifying and Collecting taxes of US persons in Canada most of whom are Canadian citizens.
Why then would the US want FATCA if US can’t go to a Canadian court to collect taxes of Canadian citizens? IRS is aggressive and will use other approaches e.g. Frightening letters.
Judge was told why Canada agreed to FATCA IGA without receiving any benefit: economic sanction.

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Lynne Swanson

August 4, 2015

Thanks for the update Carol.
I wish it was in a larger publication, but Metro News is reporting Two Women Challenging FATCA.

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Lynne Swanson

August 5, 2015

In 2010, Justice Martineau Chided the Taxman in a “stinging judgement” against the Minister of National Revenue and Canada Revenue Agency.
Here’s hoping Justice Martineau will issue a “stinging judgement” in our case.

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Lynne Swanson

August 5, 2015

Day Two of the trial. Stephen just e-mailed me and said:

Roy Berg is now in the audience.

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Lynne Swanson

August 5, 2015

Further update from Stephen:

Judge is asking questions:
“Why don’t. Accidentals just renounce”
“Are you actually challenging cbt?
Our answer: to establish whether cbt contradicts articlesof the convention
Justice now appreciates that we want decision by sept 15 not sept 30 as he originally understood and asks:
“What am I to do?”
He has already asked chief Justice foe extra time to make decision and now understans that situation is worse timewise
He is considering options.
Feds counsel confirms that it has received no undertaking on the actual date in sept when info goes to IRS
Feds counsel mentions harm to banks Jusice says what about the 700k plus citizens?
No idea how this will end today

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Lynne Swanson

August 5, 2015

More from Stephen:

Justice asks more questions;
Is it a crme for a uS person in canada to not file a us tax return?
Reciprocity in tax traty but not I iga?
Feds say:
Its not for us to qustion what the us nneds for its tax information. That is presumptuosu. The proposition that us law stops at the boder is a radical concept
Jistice asks
Doesn’t privacy act apy tp informatio?
Feds respond;
Iga superceds a$$ other acts
No difference inprincie from your t4 slip
Judge asks
Can you substantiate that this is a routine reporting ststem. I would like the evidence

Does anyone else have the sense this is not going the way the feds hoped it would?

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1. OutragedCanadian
  
  August 5, 2015
  
  It is sounding like the judge is a thinking, rational person and is not inclined to just accept what the gov says. YES!
  
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2. John Canuck
  
  August 5, 2015
  
  The behaviour of counsel for the Government is so bizarre one wonders if they actually want to lose this case. If the reports on this site are true, it speaks of amateur lawyers, or willful ignorance. To fall back on “it would harm the banks” is pathetic. The statement that the IGA overrules every other act (e.g. Privacy Acts) is presumptuous. It does not overrule every other act just because the Government says so. So far, the case looks very strong given the vacuum of supporting evidence presented by the Government.
  I love the line “The presumption that US law stops at the border is radical”. Huh? Isn’t that why we have borders?
  
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3. Lynne Swanson
  
  August 6, 2015
  
  It appears we have the best lawyer in Canada while the government has the worst one.
  
  Ginny calls Arvay a legal craftsman extraordinaire.
  
  A CD of the Summary Trial will be available in about 10 days for $15. I will definitely be getting one. I can hardly wait to see it.
  
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Lynne Swanson

August 5, 2015

I think I’m in love with the judge. More from Stephen:

Justice asking questions feds counsel not explixitly answering
Icredible qustion from justice to feds counsel:
“Do you prefer that I not ask you any questions? Would that be simpler for you? What I hate is that you just repeat what is written and never answer the question…

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1. OutragedCanadian
  
  August 6, 2015
  
  LOL! I love it!
  
  And @ John Canuck – that’s because that’s the way Harper & his cronies think. Canada is just another state, or at least they’d like it to be that way. They want to tie us in so closely to US big business that there are no borders.
  
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2. Lynne Swanson
  
  August 6, 2015
  
  @Stephen: You posted thst Judge Martineau will do his best to render a decision by September 13. That is a Sunday,
  
  Will he issue a decision on a Sunday or would it be on on Friday Sepember 11? (what a significant date that would be!)
  
  Do we have any guarantee the gov will not transfer information to IRS before September 15?
  
  And, of course, banks have already given information to CRA on some Canadians that they have identified as U.S. persons.
  
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Pacifica777

August 17, 2015

Wow! We did it! A lot of people have really stretched their budgets — as Stephen mentioned, “small-pockets donors, with their pension cheques and limited funds, somehow managed to contribute a total of $500,000 for our lawsuit.”
It’s so impressive! My thanks to all of us!
Thanks as always to our brave plaintiffs, Ginny and Gwen, and the hardworking ADCS board!
And special thanks today to Stephen for administering the fund collecting and updating us daily on it and to Tricia for her work with it as ADCS treasurer!

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Lynne Swanson

August 17, 2015

I ditto Pacifica and Stephen in thanking Little People across Canada and around the globe for their donations of $500,000.
A HUGE thank you to Stephen and Tricia for “never, never, never giving up!”

“Alone, we can do so little. Together, we can do so much.” (Helen Keller)

Well done everyone. Now we anxiously await Justice Martineau’s decision.

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Lynne Swanson

August 26, 2015

@Stephen: Thanks for posting that exchange in Australia. Sounds like “Congress has spoken” with their nuclear weapon in Australia.
Very interesting that it was an Australian Mr. Allen supporting the IGA. It was Canada’s Mike Allen who uttered the words “Congress has spoken.”
@All Financial Post asks Which will come first: a decision in the FATCA legal challenge or the first exchange of information.
Julius Melnitzer, one of the authors of that Financial Post article, is a convicted criminal and a disbarred lawyer who defrauded five Canadian banks of $67 million.
Melnitzer has written several articles about FATCA for the Financial Post. He was a prominent lawyer in London Ontario. His name is well remembered by almost anyone over the age of 50 here, more for his crimes than for his previous legal work.
It always boggles my mind when I see Melnitzer writing about FATCA. Financial Post has only accepted one article that I submitted to them.
It seems Financial Post prefers convicted criminals to write for them.

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Lynne Swanson

August 26, 2015

I just had a call from Federal Court. Justice Martineau approved my request for a CD of the trial. Unfortunately, he only approved it for my personal use, but he did not approve it for posting on line.

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1. EmBee
  
  August 27, 2015
  
  Hi Lynne,
  How’s the audio on that CD? I imagine you’re not allowed to reproduce parts in writing verbatim but I’d love to read about some of your impressions after you’ve finished listening. Some people who attended were apparently nodding off during the government’s arguments so maybe you can listen to those parts at bedtime (if you have any trouble getting to sleep). Pity the transcript of the trial is so expensive. Obviously Justice Martineau has a copy though and along with all the briefs submitted he has an enormous amount of reading to do in order to give his decision. Poor man! BTW, have you heard anything from Victoria lately? She seems to be taking almost a month long blog break.
  
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2. Lynne Swanson
  
  August 27, 2015
  
  @Embee: I don’t have the CD yet. They were going to mail it yesterday or today. Considering our terrible Canada Post service, I hope to have it by the end of next week.
  
  When I receive it, I will need to decide which parts to fast forward and which parts to replay.
  
  After I listen to it, I will ask Federal Court what the requirements or restrictions are around posting some of the content in text on line.
  
  Victoria has been on vacation in the U.S. I miss her posts and our communications.
  
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Hazy

August 28, 2015

As most know, the implementing legislation for the FATCA-IGA was buried in the 2014 budget, Bill C-31.
A little tibbit about that budget that some may find interesting from a long article by Lawrence Martin in the G&M ROB magazine:
“Mark Cameron, who worked as a policy adviser at the PMO, came to see Harper and Flaherty as respecting one another. But Flaherty freelanced too much for the boss’s liking. “He didn’t necessarily check before he went out and made statements. That aggravated us.”
It aggravated them to the point where Flaherty’s office was not even allowed to write his own budget. In 2014, for Flaherty’s final budget, over from the PMO came Scott Anderson, one of Harper’s top speechwriters.”
http://www.theglobeandmail.com/report-on-business/rob-magazine/stephen-harper-economic-genius-or-flop/article26038579/

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1. John Canuck
  
  September 4, 2015
  
  Unfortunately, Lawrence Martin is not a go-to guy for honest unbiased reporting.
  
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Lynne Swanson

August 28, 2015

Thanks Hazy. Intriguing. Especially that the former Assistant Deputy Minister of Communications for Finance is still shaking his head at some of the goings on–including don’t use the word budget in discussing the budget.
That is sort of like calling us “Americans abiding in Canada” when most of us are Canadian citizens.
“Spin to win” says it all.

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PatCanadian

August 29, 2015

Trudeau at Islamic Convention:
A small ray of hope on CTV news this morning. Justin Trudeau says that LIBERALS STAND AGAINST TWO TIERED CITIZENSHIP. No it doesn’t specifically mention FATCA, but I think it’s a step in the right direction.

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1. John Canuck
  
  September 4, 2015
  
  Perhaps, although being against two-tiered citizenship is like being against abuse of puppies. If he says something that directly ties to FATCA or the IGA, that might mean something. He isn’t, because he a) doesn’t know much about it, or b) knows about it and is not about to do anything about it should he ever be in a position to.
  
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PatCanadian

August 29, 2015

RE my previous comment: Justin Trudeau says that LIBERALS STAND AGAINST TWO TIERED CITIZENSHIP.
http://www.mississauga.com/news-story/5820233-trudeau-takes-aim-at-government-s-citizenship-law-during-islamic-conference/
It would be nice if Justin made the leap to FATCA/IGA hidden in Bill C-31 in addition to C-24.
Trudeau said, “Liberals will guarantee that all Canadians’ fundamental rights are respected as guided by the Canadian Charter of Rights and Freedoms.”
“Canadian citizenship should not be conditional. A Canadian is a Canadian is a Canadian,” said Trudeau to applause.

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1. John Canuck
  
  September 3, 2015
  
  I would not count on Justin Trudeau to jump in to the fray and negate the IGA or FATCA. I doubt he knows much about it, hence he doesn’t mention it.
  
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Lynne Swanson

September 3, 2015

I received the CD of the trial today. Unfortunately, it begins with Day 2. I don’t know where Day 1 is.
I just called Federal Court. They will send me another CD.
This is only approved for personal use. I cannot post it on line. If I want to post information from the CD or write an article about it, I must send a letter and receive consent. I cannot e-mail the letter.
I’m not sure what happened to the concept of making our justice system more open and accessible.

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Lynne Swanson

September 3, 2015

I am now having technical issues listening to the CD. It keeps pausing just a few minutes into the hearing and I can’t get it to unpause.
I have tried listening to it several times and the same thing happens each time at the same place on the CD, making me wonder if the CD is defective or if there is a problem with my computer.
This is very frustrating.

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Lynne Swanson

September 15, 2015

An article in today’s Huffington Post says our Court Fight to Stop FATCA Impacts All Canadians.
The writer says:

I wish both of the plaintiffs luck with the outcome. I doubt that it will change anything but they are right to object to the breach of their privacy.

And:

In my experience, the IRS wants people to jump through their hoops without any consideration that we are not part of the United States. And they are not concerned with privacy or our constitution. They want us to follow their rules even if they don’t always make sense.

While she seems empathetic, she ends the article with the Become Compliant, Nowhere to Hide hymn. That is probably because Cleo Hamel (the writer of the article) is a “tax expert” specializing in cross-border taxes.

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Maple Sandbox Historical Archive – 2012 to 2016

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