It may be costly for banks to engage in #FATCA based discrimination

I was not aware of this. Some of you may not be aware of it either. But a relatively new (about 5 years) provision of the Ontario Human Rights Code – S. 46 to be exact – makes citizenship based discrimination costly.

To be specific, a bank that discriminates against people based on citizenship or national origin could be forced to pay some damages. I became aware of this in a recent decision in the context of labour law.

Wilson v. Solis Mexican Foods Inc., is the first decision where the Superior Court has relied on the relatively new s. 46.1 to award a human rights remedy in a wrongful dismissal case.

In 2008, the amendments were passed and allowed, for the first time, employees who bring wrongful dismissal cases claiming a breach of contract, to piggyback discrimination claims in the Superior Court.

“They can’t just bring a discrimination claim — it has to be associated with another cause of action,” explains Hendrik Nieuwland, a partner with Shields O’Donnell MacKillop LLP. “Typically it is done by a wrongful dismissal claim and a claim of being discriminated against and seeks human rights remedies.”

Here is what S. 46.1 of the Ontario Human Rights Code says:

46.1  (1)  If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect. 2006, c. 30, s. 8.

Part 1 of the Ontario Human Rights Code includes:

1.  Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry,place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1); 2012, c. 7, s. 1.

Strikes me that without a change in the law (which might violate S. 15 of the Canadian Charter of Rights and Freedoms), the banks will be forced to obey the IRS or obey Canadian law. They are stuck between a rock and a hard place.

Not that I feel sorry for the banks, but I would NOT want to be their legal counsel.

The obvious solution is to simply get the IRS out of Canada.

Advertisements

3 thoughts on “It may be costly for banks to engage in #FATCA based discrimination

  1. renounceuscitizenship Post author

    The Charter of Rights is aimed primarily at governments not individuals and private businesses. That said, S. 24 of the Charter also establishes a a cause of action for damages if one’s charter rights are violated.

    “24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

    The Ontario Human Rights Code includes private businesses. S. 46.1 (see above) creates a separate cause of action against the private company/individual if discrimination under the Ontario Human Rights Code is determined.

    When it comes to FATCA issues, both the Canadian Charter of Rights and the Ontario (and other provincial) Human Rights Codes may apply.

    Reply
  2. AtticusinCanada

    I think they are trying to by pass the banks in Canada and the IGA will just be straight from CRA to IRS and Treasury where there is any U.S. indica and perhaps CRA will have an extra form for families with a U.S. person to fill out and CRA will “share” that form which will let our banks out of the equation. In any case it’s still informing on Canadian citizens to a foreign nation.

    Reply

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s