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JR - SOR - 'Reasonableness Review' - Justification - Impact of the Decision. 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 'impact of the decision on the affected individual' aspect of the 'reasonableness review' justification:G. The Decision Was Not Reasonable in Light of its Potential Impact on Ms. Pepa
[115] Vavilov states that “individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm” (para. 133). Specifically, Vavilov requires (at para. 133):Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood. [116] The Court in Vavilov explained that “concerns regarding arbitrariness will generally be more acute in cases where the consequences of the decision for the affected party are particularly severe or harsh, and a failure to grapple with such consequences may well be unreasonable” (para. 134). Vavilov provided the example of the IAD, noting that when exercising its equitable jurisdiction to stay a removal order under the IRPA, it should consider the potential foreign hardship a deported person would face (para. 134). This Court 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” (para. 135).
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[119] Vavilov states that “if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention” (para. 133 (emphasis added)). In my view, the IAD did not give sufficient consideration to the relatively significant consequences of the decision for Ms. Pepa. Though the stakes here are not as high as in the penal context, the consequences are nonetheless severe. Further, the IAD’s failure to address key factors of statutory interpretation at all in its reasons shows it did not explain why its decision respects Parliament’s intention, let alone “best reflects” Parliament’s intention. Parliament intended an efficacious appeal process, and the IAD’s reading makes this process all but illusory in cases where the visa has expired before the removal order is issued. The reasons ought to have demonstrated that the decision maker considered the consequences of the decision and whether such harsh personal consequences were justified in light of the facts, the law and Parliament’s intention. This did not happen here.
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