Ecojustice, on behalf of staff at Environmental Defence, 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:
- 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.
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.
Ecojustice asked for a judicial review to ensure the federal government fully investigated Volkswagen’s criminal activity as required under CEPA.
In January 2021, this request for a full investigation was denied by the Federal Court of Appeals.