Ecojustice Case – Healthy communities Case Status: In Progress

Demanding action against Volkswagen’s illegal emissions cheating

Randy ChristensenLawyer
Anna McIntoshAnna McIntoshLawyer
Environmental DefenceClient
A Volkwagen vehicle stopped in traffic on a Toronto street.
Photo by Michael Swan via Flickr | CC-BY-ND-2.0

In September 2015, news emerged that Volkswagen had installed illegal software in its diesel cars, allowing them to pass emissions testing by misrepresenting how much pollution they typically emit.

The company’s unlawful action resulted in 35 times the approved level of nitrogen oxides spewing from these cars, posing a threat to human health. More than 100, 000 cars with 2.0L diesel engines were imported and sold in Canada based on fraudulent regulatory submissions, all of which is illegal. 

That’s why Ecojustice and staff at Environmental Defence and the Canadian Association of Physician applied to open four investigations into Volkswagen’s importation, marketing, approval and sale of diesel cars equipped with the illegal emissions cheating software. Under sections 17-21 of the Canadian Environmental Protection Act (CEPA), citizens can call on the Minister of Environment and Climate Change to investigate allegations of criminal activity. Once these allegations have been made, the Minister must investigate the claims.

The group alleged that:

1. That Volkswagen unlawfully imported noncompliant cars.
2. That Volkswagen unlawfully applied the National Emissions Mark on noncompliant diesel cars and sold those cars.
3. That Volkswagen provided false and misleading information.
4. That Volkswagen and its local dealers unlawfully resumed sales of 2015 model cars after only completing a “half-fix” to the emissions system.

This request triggered the Minister to launch an investigation in 2017 into just the fourth allegation despite CEPA’s requirement that all allegations be investigated.

We filed a lawsuit aimed at ensuring the other three allegations also get investigated (Tim Gray and Muhannad Malas v. Attorney General of Canada). This was followed by a second lawsuit to ensure that we received updates and information regarding the investigation into the fourth allegation — this case has since been rendered moot after Environment and Climate Change Canada issued their final report in September 2020. 

Ecojustice is still waiting on a Federal Court of Appeal decision regarding its first lawsuit into the Minister’s failure to open investigations into the remaining three allegations.   

Four years after “Diesel-gate” became headline news (and two Ecojustice lawsuits later), the Canadian government finally laid charges against Volkswagen. 

But, unlike any normal criminal who is charged by police and has no say in it, federal prosecutors secretly negotiated with Volkswagen about which crimes it agreed to be charged with. This meant that law enforcement officers were only able to charge the company with two previously-agreed criminal counts of misleading regulators and 58 count of criminal importation, rather than the 128,000 counts Volkswagen could have been charged with for each illegal car it sold.

Why did Ecojustice get involved?

Emissions cheating cars are a danger to human health. A study in the United States links these illegal cars and low birth weight and acute asthma attacks in children.

The federal government should not have given Volkswagen a free pass after the company admitted to wrongdoing. Ecojustice has asked for a judicial review to ensure the federal government fulfills its duty to enforce the law and investigate all allegations of Volkswagen’s criminal activity as required under CEPA.

What would a win mean?

A win would mean that the Minister will have to investigate the remaining three allegations into Volkswagen’s emissions cheating and bring it to a conclusion. 

We would also like to see the federal government fulfil its commitment to reform CEPA to ensure stronger enforcement of pollution regulations, public participation and accountability.

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