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The Supreme Court of Canada’s (“SCC”) holding in Pepa v Canada (Citizenship and Immigration), 2025 SCC 21 [Pepa] reveals fault lines in the current approach to granting remedies on judicial review. The resulting uncertainty risks undermining the principle of predictability in the administrative state. In short, Pepa has significant consequences for administrative decision-makers and applicants seeking judicial review, particularly with respect to statutory interpretation.
Facts
The Parties
In 2018, Ms. Dorinela Pepa left Albania at age 20. Ms. Pepa and her father were approved for permanent resident visas to enter Canada. Ms. Pepa’s father was the principal applicant for permanent residency with Ms. Pepa as an accompanying dependent child. Just weeks before she arrived in Canada, Ms. Pepa married in secret (Pepa, para 1).
Ms. Pepa’s father did not inform Canadian immigration officials of this development, as he was unaware of his daughter’s marriage. When Ms. Pepa and her father arrived in Canada, she notified immigration officials of her marital status. She was no longer granted permanent resident status as a dependent child and was admitted into Canada for further examination (Pepa, para 2).
The Dispute
When Ms. Pepa entered Canada, she held an unexpired permanent resident visa that typically lasts for up to one year. However, a permanent resident visa can expire earlier if it is tied to the date of an underlying document (Pepa, para 3). In Ms. Pepa’s case, her supporting medication documentation expired on September 16, 2018.
Recognizing this expiration, Ms. Pepa’s counsel wrote a letter on July 24, 2018, to resolve the matter with immigration officials. Her admissibility hearing did not begin until September 25, 2018, nine days after the expiration of Ms. Pepa’s visa. The Immigration and Refugee Board of Canada, Immigration Division (“ID”) issued a removal order against Ms. Pepa, preventing her from entering Canada for five years (Pepa, para 4).
Ms. Pepa appealed this decision to the Immigration Appeal Division (“IAD”). Section 63(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] provides a right of appeal to the IAD. Specifically, the provision provides the right of appeal against a removal order to a “foreign national who holds a permanent resident visa” [emphasis added] (Pepa, para 5).
The dispute centres on when Ms. Pepa must hold her visa to have a right to appeal under section 63(2) of the IRPA. Ms. Pepa argued that section 63(2) requires her to hold a valid visa upon arrival in Canada. The Minister of Citizenship and Immigration (“Minister”) argued Ms. Pepa must hold a valid visa at the time the removal order is made (Pepa, para 6).
Judicial History
The IAD’s Decision
On August 27, 2019, the IAD concluded it did not have jurisdiction to hear Ms. Pepa’s appeal under section 63(2) of the IRPA. It reasoned that Ms. Pepa’s visa had expired before the ID issued its order, rendering her a foreign national who was not entitled to the right of appeal (Pepa, para 26). Further, on a balance of probabilities, the time between Ms. Pepa’s admission into Canada and the ID’s decision was not outside the “normal time for processing such matters” (Pepa, para 27). Ms. Pepa sought judicial review of the IAD’s decision.
The Federal Court’s Judicial Review
At the Federal Court of Canada (“FC”), Roussel J first determined that the presumptive reasonableness standard applied because the IAD’s decision did not concern the jurisdictional boundaries between two administrative decision makers (Pepa, para 28). Instead, the IAD was interpreting a provision of its home statute (Pepa, para 28).
On the issue of section 63(2) of the IRPA, the FC held that the provision providing the right to appeal applies only to someone “who holds” a permanent resident visa. As the provision is written in the present tense, Parliament intended section 63(2) not to capture people who once held a permanent resident visa (Pepa, para 30). The FC ultimately found that, as Ms. Pepa’s visa expired before the removal order was issued, the IAD could reasonably conclude it did not have jurisdiction over the dispute. Ms. Pepa appealed the FC’s decision on judicial review.
The Federal Court of Appeal’s Decision
The Federal Court of Appeal (“FCA”) agreed with the FC that the standard of review was reasonableness and that section 63(2) applies only to people who hold a visa at the time a removal order is issued (Pepa, para 32).
Interestingly, Ms. Pepa submitted that the IAD did not provide a textual, contextual, and purposive analysis of section 63(2) of the IRPA. In other words, it was unreasonable for the IAD to reach its conclusion by relying on case law interpreting section 63(2) rather than conducting its own statutory interpretation analysis. The FCA rejected this argument, concluding it was reasonable for the IAD to use case law to support its conclusion without engaging in the interpretive exercise (Pepa, para 33). Ms. Pepa appealed to the SCC.
Issue
The issue before the SCC was whether the IAD’s decision was reasonable. Specifically, the SCC had to determine if it was reasonable to find that the IAD did not have jurisdiction under section 63(2) because Ms. Pepa’s visa had expired before the removal order was issued.
The SCC’s Decision
Martin J, writing for the majority at the SCC, allowed Ms. Pepa’s appeal and remitted the matter to the IAD with a sole reasonable interpretation of section 63(2). Rowe J dissented in part, agreeing with the outcome but not with the remedy granted by the majority. Côté and O’Bonsawin JJ dissented as well but disagreed with the majority on both the outcome and the remedy.
Guidance on the Reasonableness Review
In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the SCC set out that the “principled approach to the reasonableness review” begins with the reasons provided by the administrative decision maker (Pepa, para 46). The majority in Pepa applied this approach to review by looking for sufficient flaws in the coherence or rationality of the IAD’s decision (Pepa, para 46).
Drawing on the Vavilov-era culture of justification, in which the reasonableness review centres on justification, the majority affirmed that a party challenging an administrative decision as unreasonable due to “flaws” can make two arguments.
First, the flaw may demonstrate a failure of rationality internal to the reasoning process (Pepa, para 49). Second, the flaw could underscore a failure of justification given the legal and factual constraints bearing on the decision (Pepa, para 49). Among other things, this framework considers the governing legislative scheme, statutory and common law, principles of statutory interpretation, evidence before the decision-maker, parties’ submissions, best administrative practices, and the potential impact of a decision on the individual to whom it applies (Pepa, para 51). Ms. Pepa’s appeal falls under this second category.
The IAD’s Precedents
Turning to the precedents the IAD relied on in making its decision, Martin J held that the case law relied on was insufficient to resolve the statutory question under section 63(2). The majority found the IAD did not justify or explain how the case law had “continued currency” given that the cases concerned an “outdated statutory provision” or “starkly different facts” (Pepa, para 68). In sum, it was unreasonable for the IAD to limit its reasons to these cases, which contemplated different statutory provisions under the IRPA and centred on essentially different facts.
Statutory Interpretation
Martin J concluded that the IAD ought to have conducted a statutory interpretation analysis of section 63(2), as the case law relied on did not meet the Vavilov justificatory standards—the precedents were neither sufficiently material nor binding (Pepa, para 86). The majority found that the ordinary meaning of section 63(2) captures a foreign national in possession of a permanent visa. After consulting the French version, Martin J was unable to resolve the ambiguity arising from Parliament’s use of the present tense in section 63(2) (Pepa, paras 90-91). The majority then assessed the purpose of section 63(2). Martin J held that it does not appear that Parliament intended to narrow the right of appeal under this provision to people who currently hold a permanent visa (Pepa, paras 92-98).
Further, if the provision were read narrowly, it would lead to absurd consequences in which a visa holder may lose their right to appeal before a removal order is made (Pepa, para 99). The context of section 63(2) suggests there are ways to grant permanent resident status even when a visa expires but was unexpired at the time of arrival (Pepa, para 113). Together, the text, context, and purpose reveal that the IAD would have reached a different result had it conducted a statutory interpretation analysis consistent with the modern approach to such interpretation (Pepa, para 114).
Potential Impact
The majority also held that the IAD’s decision was not reasonable given its potential impact on Ms. Pepa. In Vavilov, the SCC “concluded that administrative decision makers wield significant power over people’s lives, including those most vulnerable, and with this power comes a heightened duty ‘to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law’” (Pepa, para 116). The majority determined that the IAD’s decision did not give enough consideration to its potential impact, namely that it would separate Ms. Pepa from her family in Canada and force her to return to an “untenable situation” in Albania (Pepa, paras 118-119).
Analysis
In my view, the majority provides compelling reasons to conclude that the IAD’s decision was unreasonable. I disagree, however, with the majority’s choice of remedy. In other words, I agree with Rowe J’s dissent. I explain my reasons below in two parts, focusing on the single reasonable interpretation standard and an administrative decision maker’s expertise.
Reason #1: The Single Reasonable Interpretation Standard
When a reviewing court finds that a decision cannot be upheld on a reasonableness review, it often remits the matter to the decision maker with the benefit of the court’s reasons (Pepa, para 121). A narrow exception to this general rule flows when a particular outcome is inevitable, and remitting the matter serves no useful purpose. Rowe J notes the purpose underlying this exception is to avoid a waste of resources and delay (Pepa, para 145).
In cases involving statutory interpretation, the text, context, and purpose may indicate a single reasonable interpretation of a statutory provision at issue (Pepa, para 121). The majority supported its decision to remit the matter with the sole reasonable interpretation because the interpretive exercise indicates only one reasonable interpretation of section 63(2).
Reason #2: A Decision Maker’s Expertise
The majority’s reasons in Pepa risk undermining the administrative decision maker’s expertise. In Vavilov, the SCC held that experts in the administrative state, rather than the courts, have been entrusted by the legislature with the responsibility for administrative decision-making (Vavilov, para 140). Ensuring an expert body reviews its own statutory scheme, rather than a court that only contemplates the scheme’s design on occasion, enhances predictability and, by extension, the rule of law, in the administrative state.
Rowe J cites Vavilov, warning that courts “should generally pause before definitively pronouncing upon the interpretation of a provision entrusted to an administrative decision maker” (Vavilov, para 124). If we apply this narrow exception to remitting the matter to the decision-maker loosely, it may undermine the predictability of judicial review (Pepa, para 148).
While I agree with the majority’s statutory interpretation analysis, Rowe J rightly highlights the Minister’s submission on appeal to the SCC that there may be absurd consequences if the majority’s analysis applies to other provisions under the IRPA. If the meaning of “hold” under section 63(2) extends to other provisions contemplating “holding” or “holder” elsewhere in the IRPA, then the majority’s interpretation risks creating absurd consequences.
Remitting the matter to the IAD with the majority’s analysis provides the opportunity for the IAD to consider both the SCC’s guidance and its practical consequences as the statutory expert. Remitting the matter to the Minister with a single reasonable interpretation appears not only to slip into disguised correctness but also risks undermining predictable decision-making in the administrative state.