LEXPERT MAGAZINE
|
NOVEMBER/DECEMBER 2017 31
| RECENT LITIGATION OF IMPORTANCE |
QUENNEVILLE ET AL V. VOLKSWAGEN
GROUP CANADA, INC. ET AL AND
OPTION CONSOMMATEURS ET AL V.
VOLKSWAGEN GROUP CANADA, INC.
DECISION DATE: APRIL 21, 2017
In September 2015, the US Environmental
Protection Agency surprised the consumer
auto industry when it announced it was in-
vestigating claims that Volkswagen manufac-
tured and installed "defeat device" soware
in the brand's leading 2.0-litre diesel vehicles.
e EPA claimed that this soware could
bypass or shut down elements of the vehicles'
emissions control systems that exist to ensure
compliance with environmental regulations.
When the dust settled, the list of subject
vehicles included: Volkswagen Jetta TDI
(model years 2009-2015); Volkswagen Jetta
Wagon TDI (model year 2009); Volkswagen
Golf TDI (model years 2010-2013, 2015);
Volkswagen Passat TDI (model years 2012-
2015); Volkswagen Beetle TDI (model years
2013-2015); Volkswagen Golf Wagon TDI
(model years 2010-2014); Volkswagen Golf
Sportwagon TDI (model year 2015); and
Audi A3 (model years 2010-2013, 2015).
Volkswagen was soon embroiled in litiga-
tion across the globe in what became known
as the "Volkswagen emissions scandal."
Roughly 35 proposed class actions were com-
menced in Canada alone.
Eight Canadian class action law firms
agreed to work together to prosecute this
massive and time-sensitive case. e national
Quenneville class action was run out of On-
tario, where co-lead counsel for the class were
Harvey T. Strosberg, Q.C., of Strosberg Sasso
Sutts LLP, and Charles Wright of Siskinds
LLP. A parallel class action (Option consom-
mateurs) was run out of Québec by Belleau
Lapointe, s.e.n.c.r.l., led by Daniel Belleau.
Certification of the Quenneville action was
scheduled to be heard in June 2016, but the
hearing was adjourned to allow the parties to
continue settlement talks that began in the
spring of that year. e talks were mediated
by the former chief justice of the Superior
Court of Québec, François Rolland.
In December 2016, aer nine months of
intense negotiation, Volkswagen agreed to
resolve claims relating to roughly 105,000
affected vehicles sold and leased in Canada
for a settlement sum of up to $2.1 billion, by
far the largest consumer settlement ever ob-
tained in Canada.
e Settlement Class is composed of
more than 105,000 individuals with various
reasons for buying or leasing their cars, vari-
ous feelings about the alleged conduct, and
various types of cars (taking into account
mileage, model, model year, trims, options,
enhancements, etc.). To account for all these
differences, the settlement was structured to
offer consumers their choice of benefit com-
bined with a damage payment.
Owners may choose to have Volkswagen
repurchase their vehicle for a price aligned
with the vehicle's value at the time the "de-
feat device" soware was first made known
("Buyback"); they may choose to have Volk-
swagen repurchase their vehicle and apply its
current fair-market value toward a new Volk-
swagen- or Audi-brand vehicle, reducing the
replacement car's tax base ("Buyback with
Trade-In"); or they may choose to have their
car's emissions system repaired ("Approved
Emissions Modification") and receive an
extended warranty covering the affected
components. Owners whose car loans ex-
ceed their settlement compensation packages
qualify for additional compensation where
there was no Approved Emissions Modifica-
tion for their vehicles as of June 15, 2016.
Lessees can choose to receive an Approved
Emissions Modification, obtain the extended
warranty and remain in their lease; or to end
their lease early with no termination penalty
("Early Lease Termination"). All owners, in-
cluding certain former owners, and lessees
will receive monetary damages, in addition
to their preferred settlement benefit.
On April 21, 2017, the settlement was ap-
proved by Justice Edward Belobaba of the
Ontario Superior Court of Justice. Justice
Belobaba found that the settlement provided
Canadian consumers with compensation
on par with the compensation available to
American consumers under the parallel US
settlement agreement, and in excess of what
could be achieved in a successful tort or Con-
sumer Protection Act (Ontario) claim.
at same day, the settlement agreement
was approved by Justice Marie-Claude Lalan-
de of the Superior Court of Québec. Settle-
ment class members were eligible to start sub-
mitting claims on April 28, 2016.
e settlement administration is expected
to conclude in December 2018.
Related litigation with respect to Volkswa-
gen's 3.0-litre diesel vehicles (including Audi
and Porsche vehicles) that were allegedly af-
fected by the "defeat device" soware is on-
going, as is litigation against Robert Bosch
GmbH (and related entities), which is alleged
to have designed and supplied the soware.
Charles Wright, Daniel Bach and Emilie
Maxwell of Siskinds LLP; Harvey Stros-
berg, Q.C., and Heather Rumble Peterson of
Strosberg Sasso Sutts LLP; Reidar Moger-
man and Jennifer Winstanley of Camp
Fiorante Matthews Mogerman LLP;
Joel Rochon and Golnaz Nayerahmadi of
Rochon Genova LLP; David O'Connor and
Adam Dewar of Roy O'Connor LLP; Kirk
Baert and James Sayce of Koskie Minsky
LLP; Michael Peerless and Sabrina Lombardi
of McKenzie Lake Lawyers LLP; and Ward
Branch, Q.C., and Luciana Brasil of Branch
MacMaster LLP acted for the National
Settlement Class in the Quenneville action.
Daniel Belleau, Maxime Nasr and Violette
Leblanc of Belleau Lapointe, s.e.n.c.r.l.
acted for the Québec Settlement Class in the
Option consommateurs action.
Cheryl Woodin, now of Bennett Jones
LLP; Robert Bell of Lerners LLP; and Rob-
in Squires, John Hunter and Robert Char-
bonneau of Borden Ladner Gervais LLP
acted for the defendants, Volkswagen Group
Canada, Inc., Volkswagen Aktiengessell-
scha, Volkswagen Group of America, Inc.,
Audi Canada, Inc., Audi Aktiengesellscha,
Audi of America, Inc., and VW Credit Can-
ada, Inc.
A LOOK AT THE SETTLEMENT OF A CLASS ACTION LAWSUIT AGAINST VOLKSWAGEN GROUP CANADA IN A CASE INVOLVING
VEHICLE EMISSIONS CONTROL SYSTEMS SOFTWARE. THE SETTLEMENT, VALUED AT UP TO $2.1 BILLION,
IS BY FAR THE LARGEST CONSUMER SETTLEMENT IN CANADIAN HISTORY (SUMMARY SUBMITTED BY SISKINDS LLP)
BIG SUITS
