Don’t just do it—justify it! Supreme Court confirms that justification is key in administrative decision-making

Since the Supreme Court of Canada’s 2019 decision in Canada v. Vavilov¹, the default position in Canadian administrative law has been that administrative decisions are reviewed on a standard of reasonableness. While this entitles decision-makers to deference from a reviewing court, Pepa v. Canada² demonstrates a continued trend of courts insisting that decision-makers provide adequate justification for their decisions.

What you need to know

• Reasonableness review is not a free pass: In our recent bulletin on the Federal Court of Appeal’s decision in Toth v. Canada, we discussed the importance of consistency and justification in administrative decision-making. Pepa further confirms that reasonableness review is not a free pass—decision-makers must demonstrate how their decisions are consistent with applicable legal and factual constraints. The decision in Pepa was unreasonable because it failed to (i) justify why the precedents it relied on applied in the circumstances of this case; (ii) justify its statutory interpretation in light of the text, context and purpose of the relevant provision; and (iii) justify how its interpretation best reflected the legislature’s intention, taking into account the impact of the decision on the appellant.
• Reliance on precedents must be justified: While relevant case law may act as a constraint on whether a decision is reasonable, decision-makers must be careful to explain their reliance on precedents. Whether decision-makers are departing from past practices or relying on precedents to justify their decisions, they must explain how and why they arrived at their decisions in light of those precedents.
• Harsh consequences must be considered: The Court emphasized that a decision-maker’s reasons should demonstrate that the decision-maker considered the consequences of its decision and whether those consequences were justified in light of the facts, the law and Parliament’s intention, particularly if those consequences will be significant for the affected party.
• Reasonableness may have only one right answer: In cases of statutory interpretation, it may become clear that there is only one reasonable interpretation of the provision at issue. Pepa teaches that, in such a case, the reviewing court may decide that interpretation itself, rather than remitting the matter back to the administrative decision-maker (which is the usual remedy when a decision is overturned).

Background: Ms. Pepa’s immigration appeal

This case is about Dorinela Pepa’s attempt to appeal a removal order that was issued against her when she arrived in Canada. Ms. Pepa was granted a permanent resident visa to enter Canada as a dependent child of her father. However, on arrival, Ms. Pepa disclosed to the immigration officer that (unbeknownst to her father) she had recently married. Because of this change in marital status, she was referred for further examination and, ultimately, an admissibility hearing before the Immigration and Refugee Board. However, by the time the hearing commenced, Ms. Pepa’s permanent resident visa had expired. The hearing went against her, and the Board issued a removal order barring her from Canada—where her family now lived—for five years.

Ms. Pepa launched an appeal under subsection 63(2) of the Immigration and Refugee Protection Act (IRPA). This provision gives a right of appeal against a removal order to a foreign national “who holds a permanent resident visa”. The question in this case was when a person must hold a visa in order to have a right of appeal. The Immigration Appeal Division (IAD) concluded that a valid visa was required at the time the removal order was issued. Since Ms. Pepa’s visa had by then expired, the IAD held that it lacked jurisdiction to hear the appeal. On judicial review, both the Federal Court and the Federal Court of Appeal upheld that decision as reasonable.

Supreme Court: the decision lacked justification and was unreasonable

By a 7-2 majority, the Supreme Court allowed Ms. Pepa’s appeal and set aside the IAD’s decision, reiterating the importance of administrative justification in the post-Vavilov world. Under Vavilov, a reasonable decision is one that is internally coherent (i.e., it “adds up”) and is justified in light of the legal and factual constraints on the decision-maker. Here, the majority concluded that the IAD’s decision suffered from three critical justification failures.

First, the IAD’s decision lacked justification in relying on distinguishable precedents. The Court confirmed that, although administrative decision-makers are not required to apply precedents the same way as courts for their decisions to be reasonable, precedents on the relevant issue may constrain what the decision-maker can reasonably decide. However, precedents must be “pertinent, on point, and help answer the question at hand”³. Here, the cases relied on by the IAD were inapplicable either because they dealt with an outdated statutory provision or were distinguishable on their facts. The IAD failed to justify why those cases were nevertheless relevant to the interpretation of subsection 63(2) in the context of Ms. Pepa’s appeal.

Second, the IAD’s decision was not justified under the principles of statutory interpretation. The Court explained that an administrative decision-maker does not need to perform a full statutory interpretation analysis in every case, but their decision does need to be justified in light of the text, context, and purpose of the statute. Here, the IAD failed to conduct that analysis. Moreover, the IAD’s proposed interpretation would lead to an absurd result: a person could lose their appeal right before the removal order being appealed is even issued, simply by virtue of the time it takes for a case to work its way through the system. Further, the visa expiry date (and thus the date where a right of appeal ended) was arbitrarily tied to the expiry date of documents underlying the visa (e.g., passport or medical documents). The IAD was required to explain how its proposed interpretation and result were consistent with the text, context and purpose of the statute.

Third, the IAD failed to justify its decision in light of the personal impact on Ms. Pepa. If a decision has particularly harsh consequences for an individual, the decision-maker has a higher justificatory burden to explain why their decision best reflects the legislature’s intention. Here, Ms. Pepa would be separated from her family for at least five years. The IAD failed to sufficiently consider this impact, whether it was justified, and whether such a consequence best reflected Parliament’s intention.

In dissent, Justices Côté and O’Bonsawin would have found the IAD’s decision reasonable. In their view, the IAD appropriately applied instructive precedents, aspects of which remained relevant to the interpretation of subsection 63(2) despite changes to the governing statutory scheme. The IAD’s decision was also consistent with its own past cases and the “most fundamental principle of immigration law” that “non-citizens do not have an unqualified right to enter or remain in Canada”⁴.

Remedy: only one reasonable interpretation

Where a decision is found to be unreasonable, the reviewing court generally sends the matter back to the decision-maker so that they can reconsider their decision with the benefit of the court’s reasons. However, if it becomes apparent that there is only one reasonable outcome, a reviewing court may make the final decision rather than sending the matter back, since doing so would serve no useful purpose.

That was the approach adopted by the majority in Pepa. The majority concluded that there was only one reasonable interpretation of subsection 63(2), which gave the IAD jurisdiction to hear Ms. Pepa’s appeal. The majority therefore remitted the case back to the IAD to determine the appeal on the merits.

Justice Rowe disagreed with the majority’s conclusion on remedy. In his view, the question of the IAD’s jurisdiction over Ms. Pepa’s appeal should have been remitted back to the IAD for redetermination with guidance. Otherwise, Justice Rowe observed that courts risk slipping into disguised correctness review and doing more harm than good. As Justice Rowe explained, “[i]f this Court itself interprets the relevant provision, there may well be consequences for the legislative scheme which we cannot contemplate, but that the IAD would more readily appreciate”⁵. Justices Côté and O’Bonsawin agreed.

Implications

Pepa is the most recent affirmation from the Supreme Court that the justificatory burden on administrative decision-makers is significant. Even in cases where a decision-maker is interpreting their “home” statute (an area where decision-makers are generally considered to have expertise), the decision must still demonstrate sufficient justification in light of the applicable legal and factual constraints. Reasonableness review is far more robust than a rubber stamp.