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JR - SOR - Reasonableness Review - Justification - Statutory Interpretation. 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 'statutory interpretation' aspect of 'reasonableness review' justification:[62] Where the meaning of a statutory provision is disputed in administrative proceedings, the decision maker must demonstrate in its reasons that it was alive to the essential elements of the modern principle of statutory interpretation (Vavilov, at para. 120). The meaning of s. 63(2) was directly in dispute before the IAD: Ms. Pepa argued that her visa was still valid when the referrals under s. 44(2) of the IRPA were issued, while the Minister said she needed to hold the visa at the time the removal order was issued.
[63] The IAD did not meet its burden of justification, based on its reasoning process and the outcome it produced. In terms of its reasoning, the IAD acted unreasonably in what it did and what it failed to do. It did not conduct its own interpretation of s. 63(2) according to the constraints imposed by the modern principles of statutory interpretation. That is not in itself fatal as administrative decision makers are not required to engage in a formalistic statutory interpretation exercise in every case. Nonetheless, the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context, and purpose of the provision (Vavilov, at para. 120).
[64] While decision makers may sometimes rely on authorities which have interpreted the legislative provision according to those principles, it is not just the citing of any case that will satisfy the burden of justification. The decisions relied on must themselves be based on the expected interpretative framework and must be pertinent, on point, and help to answer the question at hand. Since the IAD’s interpretation of s. 63(2) cannot be justified simply on the basis of the cases it cites, it was therefore required to turn its own mind to how s. 63(2) should have been approached under the relevant principles of interpretation. It did not do so. Its analysis is at odds with the object and purpose of the appeal right in s. 63(2) and its conclusion allows results that are both absurd and arbitrary. The IAD decision also did not take into account the severe consequences of its decision on Ms. Pepa.
[65] Had the IAD undertaken the required analysis and appreciated the constraints it was under, it would have concluded, taking into account the text, context, and purpose, that the only time at which a person must “hold” a visa under s. 63(2) is when they enter Canada.
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[85] Overall, the FCA below erred in concluding that based on the IAD’s review of the case law, it was reasonable for the IAD not to undertake its own statutory interpretation analysis. While Vavilov states that precedent will act as a constraint on what the decision maker can reasonably decide, this only applies to precedent on the issue before it, or precedent on a similar issue. A decision maker needs more than a few citations to cases relying on a different provision, or a clearly distinct factual matrix, to determine the issue. Though failure to conduct a statutory interpretation analysis is not fatal on its own, where the case law available to the decision maker is not sufficiently material or binding, the analysis cannot simply stop without ensuring that due consideration has been given, according to the modern principle of interpretation, to the competing interpretations asserted by the parties.
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F. The Decision Was Not Reasonable in Light of the Principles of Statutory Interpretation
[86] A decision may be unreasonable due to a failure of justification in light of the legal and factual constraints, which can include the principles of statutory interpretation (Vavilov, at paras. 99 and 115-24). Given that the case law relied on by the IAD was not sufficiently material or binding, it ought to have conducted an analysis of the text, context, and purpose of the very legislative provision over which the parties had competing interpretations. There is no requirement for an administrative decision maker to conduct a full statutory interpretation analysis in every case. However, if a proposed interpretation is clearly incongruous with a statutory provision’s text, context, or purpose, its failure to consider that element “would be indefensible, and unreasonable in the circumstances” (para. 122).
[87] The usual principles of statutory interpretation apply when an administrative decision maker interprets a provision (Vavilov, at para. 120). It is well established that a statutory interpretation analysis must be guided by the modern approach: “. . . the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; Vavilov, at para. 117). . Teper v. Information and Privacy Commissioner of Ontario
In Teper v. Information and Privacy Commissioner of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed an MFIPPA JR, here against an IPC ruling that "the records requested were not in the TDSB's care or control and that the TDSB [SS: 'Toronto District School Board'] conducted a reasonable search for any responsive records".
Here the court considers the JR SOR for statutory interpretation:[25] The issue of the interpretation and application of whether records are "in the custody or under the control of" an institution is a question of statutory interpretation. The court is to evaluate matters of statutory interpretation on a reasonableness standard: Vavilov, at para. 115. . Weiler v. Workplace Safety and Insurance Appeals Tribunal
In Weiler v. Workplace Safety and Insurance Appeals Tribunal (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, here against a WSIAT-denied "claim for [SS: full] loss of earnings (“LOE”) benefits under the Workplace Safety and Insurance Act".
Here the court comments on the JR SOR for issues of statutory interpretation:[38] A court reviewing a question of statutory interpretation in a judicial review must be careful to not “conduct a de novo interpretation nor attempt to determine a range of reasonable interpretations against which to compare the decision of the administrative decision maker.” Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, at para. 40. At paras 42-46 the court rules against the applicant.
. 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 'statutory interpretation':(c) Principles of Statutory Interpretation
[64] Statutory delegates are empowered to interpret the scope of their authority when enacting subordinate legislation. Their interpretation must, however, be consistent with the text, context and purpose of the enabling statute (Vavilov, at paras. 120‑21; Keyes (2021), at p. 193). They must interpret the scope of their authority in accordance with the modern principle of statutory interpretation. The words of the enabling statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).
[65] In conducting a vires review, a court does not undertake a de novo analysis to determine the correct interpretation of the enabling statute and then ask whether, on that interpretation, the delegate had the authority to enact the subordinate legislation. Rather, the court ensures that the delegate’s exercise of authority falls within a reasonable interpretation of the enabling statute, having regard to the relevant constraints.
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