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JR - SOR - Reasonableness Review - Justification - Other Statutory and Common Law. Pepa v. Canada (Citizenship and Immigration)
In Pepa v. Canada (Citizenship and Immigration) (SCC, 2025) the Supreme Court of Canada allowed an appeal, this from a Federal Court of Appeal decision (that from a judicial review at the Federal Court) that held that "it was reasonable for the IAD ['Immigration Appeal Division'] to have found that “it does not have jurisdiction to hear an appeal pursuant to subsection 63(2) [SS: 'Right to appeal — visa and removal order'] of the [IRPA] if the permanent resident visa is expired at the time the removal order is issued”.Note: IRPA 63(2) provides that a "foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing". Here the court considered the 'other statutory or common law' aspect of 'reasonableness review' justification:E. The Decision Was Not Reasonable in Light of the Relevant Precedents
[66] I start with the case law the IAD relied upon in its reasons to ground its interpretation of s. 63(2). Administrative decision makers are not required to apply the common law in the same manner as courts in order for their decisions to be reasonable (Vavilov, at para. 113). However, “[a]ny precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide” (para. 112). Vavilov is clear, at para. 112, that[a]n administrative body’s decision may be unreasonable on the basis that the [administrative decision maker] failed to explain or justify a departure from a binding precedent in which the same provision had been interpreted. Where, for example, there is a relevant case in which a court considered a statutory provision, it would be unreasonable for an administrative decision maker to interpret or apply the provision without regard to that precedent. The decision maker would have to be able to explain why a different interpretation is preferable .... In line with Vavilov, it would also be unreasonable for an administrative decision maker to rely on clearly inapplicable or distinguishable case law — like cases in different areas of the law or cases addressing different statutory provisions — without justification and explanation of its continued relevance to the matter at hand.
[67] Similarly, while administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis, both administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions, and if a decision maker departs from longstanding internal practices, that departure must be explained (Vavilov, at para. 129). Whether a particular decision is consistent with the administrative body’s past decisions is a constraint which the reviewing court can and should consider when determining if an administrative decision is reasonable (para. 131). This does not mean that administrative decision makers are bound by internal precedent in the same manner as courts, but simply respects the legitimate expectations of the parties and reduces the risk of arbitrariness (para. 131). Vavilov is also clear that “reviewing courts have a role to play in managing the risk of persistently discordant or contradictory legal interpretations within an administrative body’s decisions” (para. 132). . Auer v. Auer
In Auer v. Auer (SCC, 2024) the Supreme Court of Canada dismissed an appeal of a JR, here challenging the Federal Child Support Guidelines as ultra vires their Governor-in-Counsel-delegated Divorce Act authority.
The court considers JR 'reasonableness review', here on the constraining factor of 'other statutory or common law':(b) Other Statutory or Common Law
[63] The scope of a statutory delegate’s authority may also be constrained by other statutory or common law. Unless the enabling statute provides otherwise, when enacting subordinate legislation, statutory delegates must adopt an interpretation of their authority that is consistent with other legislation and applicable common law principles (Vavilov, at para. 111, referring to Katz Group, at paras. 45‑48; Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427, at para. 40; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 74; Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006, at paras. 93‑98; Keyes (2021), at pp. 205‑6).
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