| |
Posted Feb 6, 2020, 10:24 PM
|
 |
BANNED
|
|
Join Date: Jul 2018
Posts: 4,537
|
|
Quote:
Originally Posted by Changing City
Did they refuse to review it? Or did they review it, and dismiss it?
|
The first I believe. Looking for it again but couldn't find it. Found it! Honestly looks like he discussed them but its way too legal for me to understand. He does mention an investor-state arbitration tribunal. In point 171 he mentions how these treaties are not part of domestic law, I'm not sure what that refers to but I assume it means that although we have treaties we haven't integrated them into domestic law?
Quote:
[158] In its second amended notice of civil claim the plaintiff refers to 33 international treaties that Canada has entered into with certain named countries, which it refers to as the “List A Treaties”. They include the North American Free Trade Agreement (“NAFTA”). The plaintiff submits that in these treaties, Canada has ensured that governments here will provide treatment to investors from List A countries that is no less favourable than that received by Canadians operating in a reciprocating country.
[159] As an example, the plaintiff cites Article 1102 of NAFTA that provides:
1. Each Party shall accord to investors of another Party treatment no less favourable than it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
2. Each Party shall accord to investments of investors of another Party treatment no less favourable than that it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
3. The treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a state or province, treatment no less favourable than the most favourable treatment accorded, in like circumstance, by that state or province to investors, and to investments of investors, of the Party of which it forms a part.
[160] Under Article 1139 of NAFTA, the ownership of real estate constitutes an investment that is protected by NAFTA. An investor is defined as someone who has made, is making or seeks to make an investment. Accordingly, persons who seek to make a real estate investment who are nationals of one of the contracting parties are covered by the terms of NAFTA.
[161] The plaintiff argues that the Impugned Provisions require foreign investors to pay a tax that is not otherwise payable by Canadian citizens or permanent residents operating in like circumstances and thus treat investors from the treaty countries less favourably than Canadian citizens or permanent residents.
[162] The plaintiff also refers to treaties entered into by Canada with a number of countries described as “List B Countries”, many of which are the same as in the List A Countries, to ensure that all governments in Canada pay monetary compensation upon the taking of property (“expropriation”) of foreign investors.
[163] As an example, the plaintiff cites Article 1110 of NAFTA which provides:
Article 1110: Expropriation and Compensation
1. No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment (“expropriation”), except:
a. for a public purpose;
b. on a non-discriminatory basis;
c. in accordance with due process of law and Article 1105(1); and
d. on payment of compensation in accordance with paragraphs 2 through 6.
2. Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (“date of expropriation”), and shall not reflect any change in value occurring because the intended expropriation had become known earlier. Valuation criteria shall include going concern value, asset value including declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value.
3. Compensation shall be paid without delay and be fully realizable.
[164] The plaintiff submits that payment of the Tax by a foreign investor to acquire real property constitutes an amount wrongfully taken by the defendant in respect of an asset protected by the List B Treaties in violation of the expropriation provisions of those treaties.
[165] The plaintiff also refers to List C countries that are parties to the World Trade Agreement with Canada and the treaty obligations include the General Agreement on Trade in Services, (“GATS”), which it argues applies to the purchase of a home. The plaintiff says that the Tax offends Article XVII of GATS, the national treatment provision.
[166] In its written submission, the plaintiff referred for the first time to federal statutes for six additional treaties that were not listed in Lists A, B and C of her amended pleadings. The six additional free trade agreements, (“FTA’s), are not included in the affidavit of H. Warhurst and the reports of Professor Howse and Mr. Thomas do not address them. In my view, at such a late stage in the trial, Canada’s FTA’s with Costa Rica, the European Free Trade Association, the European Union, Israel, Jordan, Panama, Ukraine and the United States should not be allowed into evidence. Further, there has been no demonstration by the plaintiff that those FTA’s contain investor protection provisions. Neither do those FTA’s contain national treatment or expropriation compensation obligations relating to investments.
[167] In support of the allegation of treaty violations, the plaintiff has relied on the opinions of Professor Howse found in paras. 98 to 124 of his report which have not been admitted into evidence. The omissions and errors in Professor Howse’s analysis are pointed out in paras. 31 to 105 of the reply report of Mr. Thomas.
[168] It is also apparent that in many of the treaties cited by the plaintiff in her notice of civil claim, the plaintiff’s claim is barred under the terms of the treaty. For example, under Article 14 of the Canada-China FIPA, the national treatment obligation has no application to taxation measures.
[169] Similarly, although there is an expropriation compensation provision in the Canada-China FIPA, under Article 14(5), an investor is precluded from making a claim under it in respect of a taxation measure unless and until the taxation authorities of Canada and China have been given a six-month window of opportunity to determine that the taxation measure is not an expropriation. Professor Howse provides no indication of how he reached the conclusion that the national treatment obligation of the 33 List A treaties is fully binding in relation to the Foreign Buyers’ Tax in respect of the treaties that exclude taxation measures from the scope of national treatment. In my view, the schedules appended to the opinion of Professor Howse contain conclusions without a path of analysis and I give them no weight.
[170] I accept the view of Mr. Thomas that it would be “an uphill battle” to persuade an investor-state arbitration tribunal that a tax like the Foreign Buyers’ Tax constitutes an expropriation. (paras. 177-192 of Thomas report). It is my view that, apart from the requirement in Article 14(5), the Tax does not amount to an expropriation, either direct or indirect, under any of the List “B” treaties.
[171] Of the 37 treaties cited by the plaintiff, only six FTA’s and the GATS have federal implementing legislation. Each of the seven federal implementing statues contain a provision that the treaty “is hereby approved”, however such general approval does not have the effect of incorporating the content of the treaty into domestic law. (Pfizer Inc. v. Canada (T.D.), [1999] 4 FC 441, aff’d [1999] FCJ No 1598 (CA) and Council of Canadians v. Canada (Attorney General), (2006), 277 DLR (4th) 527 (Ont. CA))
|
Quote:
[172] As noted by the defendant, to the extent that aspects of the FTA’s and the GATS have actually been incorporated into domestic law, the implemented content does not encompass the investor protections cited by the plaintiff and has no relationship with or application to the Impugned Provisions. The implementing statutes did not effect wholesale incorporation of the treaties into domestic federal law but only specific aspects of the treaties excluding the investor protection provisions. I agree with the defendant that the provisions of the federal implementing statutes prohibiting a private cause of action are consistent with Parliament’s intention not to incorporate the investor protections into domestic law.
[173] There is also an absence of implementing legislation for the thirty Foreign Investment Protection and Promotion Agreements (“FIPAs”) referred to by the plaintiff. (Sin v. Canada, 2016 F.C.J. 61)
[174] Paramountcy requires the identification of a domestic federal law with which the impugned provincial legislation is in conflict and in my view the plaintiff has not succeeded in pointing to such a federal law. Accordingly, the plaintiff has not established that the Impugned Provisions are inoperative by reason of the paramountcy doctrine nor that they frustrate the purpose of a federal law.
|
https://www.bccourts.ca/jdb-txt/sc/1...m#_Toc22721539
Last edited by misher; Feb 6, 2020 at 10:48 PM.
|
|
|
Prev
Linear Mode
