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CMB MAGAZINE cmba-achc.ca fall 2016 | 43 an efficient use of litigants' and the court's time. Because not all of the wronged persons participate directly in the legal action, the court supervises every stage of the process.) If the plaintiff is appointed as the representative in the class action, she would be representing the class of foreign entities who are nationals of countries with which Canada has relevant treaties 2 , have purchased property in the relevant area, and have paid – or will have to pay – the 15 per cent tax. In certifying the class action, the Court can adjust the scope of the class. Basis for the litigation e Plaintiff asks the Court to declare that the 15 per cent tax law is invalid because: n the jurisdiction (or power) to enact it belongs, under Canada's constitution (the highest law of the land), to the federal government and not the provincial government, and n it is contrary to a number of international treaties Canada has with other nations. No provincial jurisdiction Canada's Constitution gives exclusive jurisdiction in some areas to the federal government and in others to the provincial governments. e Plaintiff 's claim sets out that the constitution gives the federal government exclusive jurisdiction over the conduct of foreign affairs, the conduct and regulation of foreign trade, aliens, and the regulation of trade and commerce. e Plaintiff claims that the 15 per cent tax falls within these categories. Contrary to treaties e Plaintiff claims that the revised legislation violates over 30 international treaties in which Canada has committed to treat foreign nationals just as favourably as citizens of this country. She claims that the revised legislation treats foreign entities less favourably than Canadian citizens or permanent residents purchasing residential properties in the specified area – the distinction being the requirement to pay the 15 per cent tax. She claims the tax, contrary to the treaties, discriminates between Canadians and non-citizens solely on the basis of residency and citizenship. Remedies sought e Plaintiff is essentially asking the court to order that the amendments to the law be declared invalid and that the Crown repay, to the class, money collected under the tax. Likelihood of success It is not possible to assess the strength of the Plaintiff 's case at this early stage, particularly as no defence has been filed yet. Certainly there appears to be some merit to the Plaintiff 's arguments concerning the province exceeding its jurisdiction and acting contrary to treaties. However, the Crown should not be without counter-arguments, among them: 1. e Constitution gives the province jurisdiction over: n direct taxation within the province in order to raise revenue for provincial purposes, n property and civil right in the province, and n generally, all matters of a merely local or private nature in the province. e Court will have to review the amendments and determine whether they properly come within one of the powers of the federal government or, alternatively, under one of the powers of the provincial government. 2. Assuming there is a treaty breach, the action and remedy may not be available at the personal level, and the proper forum to hear the case may not be the provincial Supreme Court. e treaty might specify process and remedies to be taken at the national level in an international forum for hearing disputes. The Takeaway is action could take years to resolve. In the interim, the tax will almost certainly continue to be collected. If the Crown loses the class action, the province could be made to repay very large amounts of money that will have been collected under the tax. e long-term impact of the tax on the housing and mortgage market remains to be seen. 1 Foreign entities are transferees who are foreign nationals, foreign corporations or taxable trustees. Foreign nationals are transferees who are not Canadian citizens or permanent residents, including stateless persons. 2 The court action specifies the class much more precisely, but this brief description is adequate for the purposes of this article.

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