Federal Court Dismisses Demand For Investigation Of CEPA Violations Relating To Diesel Vehicles Equipped With Defeat Devices

In Gray and Malas v. Attorney General of Canada 2019 FC 1553 the Federal Court dismissed an application for judicial review of two decisions by the Minister of Environment and Climate Change.

The Minister's delegate had refused to open investigations into allegations made by the applicants relating to the importation and sale in Canada of Volkswagen, Audi and Porsche diesel vehicles equipped with prohibited defeat devices intended to produce fraudulent results when the vehicles underwent emission tests. The applicants were frustrated by the time it was taking for the Ministry to pursue its investigations and the lack of information concerning the investigations' progress.

Their demand for an investigation which was already underway by the Ministry was not simply a publicity stunt. If an investigation was required following an application under the Canadian Environmental Protection Act (C.E.P.A.), section 19 of the Act required the Minister to report to the applicants every 90 days both on the progress of the investigation and what if any action was taken or proposed. Further the minister would have to estimate the time required to complete the investigation or to implement the action taken or proposed. Further, under section 21, if the Minister chose to discontinue the investigation she would be required to prepare a report in writing describing the information obtained, the reasons for discontinuation and a copy of the report would have to be sent to the applicants as well as those whose conduct was investigated.

The applicants argued that under section 18 of C.E.P.A. the Minister had no discretion whether to investigate the allegations pursuant to the procedures under the Act since section 18 employed the mandatory language "shall investigate". The Minister, according to the applicants, did retain a discretion under section 18 to decide which matters were necessary to determine the facts of the offence alleged by the application.

The Court rejected this interpretation and agreed with the...