We answer your questions on why we took this case on, and what makes it important
As you might remember, last summer, we started working with our friends at Environmental Defence and Canadian Association of Physicians for the Environment to ensure Volkswagen is held accountable for cheating the Canadian public and polluting our air.
A lot has happened since we first launched this case. We’ve had two interveners apply and in early March, we took part in a cross-examination — if you’re curious about how it went, keep reading!
And today, we’re heading into court to argue that Environment and Climate Change Canada should be required to answer our questions about what progress it’s made in its investigation into Volkswagen’s emissions-cheating scandal and why it’s been so reluctant to hold the auto giant to account for its environmental crimes
In the coming months, we expect there to be even more developments on this case. So keep your eyes peeled for further updates. In the meantime, to make sure you’re in the know, we’re serving up some of the most frequently asked questions we’ve received since launching this case.
What did Volkswagen do?
It is estimated that 105,000 Volkswagen, Audi and Porsche vehicles equipped with the illegal emissions-cheating software were imported and sold in Canada. The software acts like a secret on/off switch for legal compliance by turning the cars’ pollution control equipment on in the laboratory, but off when driven on the open road.
These cars are capable of emitting up to 35 times the legal level of nitrogen oxides — known to cause adverse, even fatal, effects on the respiratory systems of humans and animals, and damage to vegetation — into the air. To top things off, recent research from the Massachusetts Institute of Technology linked Volkswagen’s emissions cheating to 1,200 premature deaths in Europe.
So far we’ve seen the United States investigate, prosecute the company for billions of dollars and send one of the company’s executives to prison. While countries across Europe, have launched both criminal investigations and lawsuits from consumers. And yet, our government continues to do next to nothing.
That’s why we’re helping our clients challenge federal Minister of Environment and Climate Change Catherine McKenna’s refusal to investigate and hold Volkswagen accountable for its importation, marketing, approval and sale of diesel cars equipped with the illegal emissions-cheating software in Canada.
Why is this case important?
We launched this case to make sure the federal government fulfills its duty to enforce the law and hold Volkswagen accountable for knowingly importing, marketing and selling vehicles that emit illegal amounts of deadly pollutants into the air. We did so because Minister McKenna has taken zero enforcement action against Volkswagen for its illegal fraud. As one of her officials recently admitted under oath when cross-examined:
Q: What enforcement actions have been taken against Volkswagen in respect of its diesel emissions problem?
A: There’s no enforcement actions that have been taken to date for Volkswagen Canada or the investigation underway by Environment and Climate Change Canada.
We cannot change what Volkswagen has done to the air we breathe, but we can make sure that the Minister does her job and makes Volkswagen pay for its actions.
What are we trying to accomplish?
We’re seeking a court order that will force the federal government to open a meaningful and thorough investigation into Volkswagen’s diesel emissions-cheating and hold the company accountable for its environmental crimes.
A ruling in our favour would send a strong message that corporations that break the law and commit fraud against the public, like Volkswagen, will not be given a free pass.
What other countries have prosecuted Volkswagen for its fraud?
Since the world learned that Volkswagen had knowingly installed an illegal emissions-cheating software in its diesel cars, countries around the world have moved swiftly to hold the company to account — it is estimated that nearly 11 million cars worldwide were equipped with the software.
In Europe, Germany and France are just a few of the countries who have made moves towards holding the company to account for defrauding its citizens — to date, more than 20 countries have launched government actions.
Our neighbour south of the border, the United States, has already delivered swift justice by investigating and prosecuting the company for its fraud. Nearly two years ago, Volkswagen plead guilty for its crimes and agreed to voluntarily pay a whopping USD $15 billion settlement — made possible thanks to testing in Canada. Part of this settlement is being used to mitigate pollution and build infrastructure for zero-emission vehicles.
We’ve also seen actions brought forth by the provinces of Quebec and Ontario. You might remember that in September 2017, Ontario Ministry of Environment investigators raided the company’s Canadian headquarters as part of its continuing investigation.
Volkswagen has already admitted that it perpetuated fraud against the public and put human health at risk by selling emissions-cheating vehicles — a confession the company cannot walk back from, anytime or anywhere. But it seems like Environment Canada is still holding out on prosecuting the company at the federal level.
For two years, Canadian law enforcers have dragged their feet in prosecuting Volkswagen’s criminal activity — despite the opportunity to piggyback off of the completed, successful U.S. prosecution.
How did cross-examination go?
Ecojustice lawyers cross-examined a witness from Environment and Climate Change Canada’s enforcement branch in March.
We asked a number of questions regarding the scope of the government’s stalled investigation — and why it has chosen to shield its progress from public view. The answers we got back suggest the Minister is keeping secrets about Volkswagen from Canadians, even while she is sharing information with foreigners, like the U.S. Environmental Protection Agency (U.S. EPA) Here’s a snippet of that cross-examination of the Minister’s witness:
Q: Under the section headed Key Messages, the third bullet point reads that there has been “vehicle testing conducted at Environment and Climate Change Canada’s laboratory in Ottawa that contributed to the United States Environmental Protection Agency’s issuance of a second notice of violation in November 2015.”
That does seem to restate … that there has been communication and sharing of information between Environment Canada and the U.S. EPA of technical information… Is that your understanding?
A: My understanding is that type of information you just mentioned has been shared. It also seems to be what’s mentioned in the bullet that you just read out.
Q: Is that sort of sharing of information with the U.S. EPA done with Volkswagen’s permission or is it just a routine function that is done?
A: I don’t know.
Later in the cross-examination, the witness confirmed that the Minister is keeping the Volkswagen investigation file secret, even though there is no official policy of doing so.
Q: Earlier you testified the entire investigation file was covered by confidentiality.
A: We treat it as confidential. I don’t know if you’re using the word confidentiality in a more specific sense.
Q: I’m not. You treat the entire investigation file as confidential, correct?
[ … ]
Q: Does Environment Canada have a policy manual or a policy collection?
A: We do have a policy manual.
Q: Does that include a policy stating that everything in investigation files is confidential?
A: No, it doesn’t.
All of which is to say: Although there is no official departmental policy about keeping investigation files confidential, Minister McKenna is keeping the entire 10,000 page Volkswagen investigation file secret from Ecojustice and our clients. We’re hoping that today’s court appearance will require the government to answer the important questions we’d asked during cross-examination.
Who else is concerned about this case?
In recent months, we’ve seen a number of interested parties step up to the plate.
First, Volkswagen applied to intervene in the case. Unsurprisingly, the company is seeking to limit the release of corporate records in court.
Not long after, The National Observer filed papers to intervene in response to Volkswagen’s intervention. The Observer argues that the documents should be unsealed as a matter of public interest, freedom of the press, and respect for Canada’s legal commitment to open and accessible court proceedings — and we agree!
How can I support this case?
Ecojustice relies on the generosity of supporters like you to make our work possible. You can help by sharing the news about this case with your friends and family, or by making a donation today!
We’ve got a long road ahead of us on this case. Your support will ensure that our team of experts has the resources they need to go toe-to-toe with the federal government and Volkswagen in the courts. Give today and help us make sure multinational companies who pollute Canada’s air do not get away scot-free.