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Statutory Interpretation - Absurdity. Pepa v. Canada (Citizenship and Immigration) [and arbitrariness]
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 considers the 'absurdity' principle of statutory interpretation:[102] It is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences (Rizzo, at para. 27). An interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, if it is incompatible with other provisions, or if it defeats the purpose of the statute or renders some aspect of it pointless or futile (para. 27). On a robust review, it is not reasonable to conclude, without clear wording or a compelling justification, that Parliament intended that a person could lose their right to appeal before any hearing on the merits took place and before any removal order was issued. The burden of justification to establish that Parliament wanted a person to lose their right of appeal due to scheduling delays or as a result of the normal timeline of further examinations extending beyond the visa’s expiry date would be very high. There is no solid evidence or sound argument upon which to rest the finding that Parliament intended such absurd consequences. In fact, Parliament explicitly excised language from the old provision requiring a person to hold a valid visa at the time a report was made, and instead omitted any reference to a point in time in the new IRPA. The IAD reasons rest on the absurd premise that Parliament enacted the IRPA to include a facially and fatally flawed safeguard: an express appeal right that can commonly be lost before any decision that could be appealed is taken. With respect, that is not a reasonable reading or result. As was the case in Mason, at para. 98, the IAD failed to address the absurd consequences of its interpretation.
[103] The prospect of absurd consequences is also compounded by potential arbitrariness associated with the expiration of a person’s visa. The issuance of a permanent resident visa to a foreign national takes place as a result of an assessment of that person’s eligibility, and the expiry date of the visa is linked to this assessment: a permanent resident visa is issued for a period not exceeding one year, and the expiry date is tied to the earliest expiry date of the applicant’s passport or medical documentation.
[104] In this case, Ms. Pepa’s medical examination documentation had a “valid to” date of September 16, 2018, while her Albanian passport would not expire until several years later. As such, the date of expiry on her visa was the earlier of the two: September 16, 2018.
[105] The IAD’s interpretation arbitrarily ties a person’s right of appeal to the date of expiry on a passport, or the date of expiry on medical documentation, to a maximum cap of one year. On their face, neither of those dates can be rationally connected to a right of appeal. Thus, the absurdity is compounded by arbitrariness.
[106] Given the legislative history, absurd consequences, and inherent arbitrariness of the visa’s expiration date, the intention of Parliament cannot have been for individuals like Ms. Pepa to lose their right of appeal before the issuance of a removal order. It cannot be assumed that Parliament repealed the predecessor provision to enact a futility, as the IAD’s interpretation suggests. The IRPA is a comprehensive piece of legislation with a sequence of remedies in place, and Parliament must have intended those remedies to have a purpose and be efficacious. To find otherwise would require the clearest of statutory language to the contrary, which s. 63(2) does not contain. . Telus Communications Inc. v. Federation of Canadian Municipalities
In Telus Communications Inc. v. Federation of Canadian Municipalities (SCC, 2025) the Supreme Court of Canada dismissed an appeal, here from a Federal Court of Appeal dismissal, that from a CRTC ruling that it did not have jurisdiction "to adjudicate disputes over access to 5G small cell antennas situated on public property" under the 'access regime' for telecommunications carriers.
Here the court considers the 'absurdity' principle of statutory interpretation:(5) Absurd Consequences
[75] Finally, the carriers argue that a narrow interpretation of “transmission line” leads to the absurd result that the wireline equipment in a mobile wireless network (the cable) is covered by the access regime while other, necessary, equipment (the antenna) is not. Quebecor and Videotron submit that because it is impossible to operate 5G transmission lines without small cell antennas, the same access rights should apply to the entire network, i.e., to both the cables and the antennas. Likewise, Rogers submits that Parliament could not have intended to grant carriers a right of access to deploy the cables that connect to 5G small cell antennas, but not the antennas themselves.
[76] The consequences of a particular interpretation are a component of the modern approach to statutory interpretation. Consequences that are consistent with the purpose and scheme of the legislation are presumed to have been intended. Conversely, consequences that are absurd or otherwise unacceptable are presumed not to have been intended (Rizzo, at para. 27; Wang v. British Columbia (Securities Commission), 2023 BCCA 101, 480 D.L.R. (4th) 1, at paras. 42-43; see also R. Sullivan, “Statutory Interpretation in a New Nutshell” (2003), 82 Can. Bar Rev. 51, at p. 64).
[77] I agree with the carriers that an access regime that applies to wireline equipment in a mobile wireless telecommunications network but not wireless equipment is not the regime most favourable to the deployment of 5G infrastructure, a regime that Parliament could have enacted. It will require them to negotiate with municipalities without recourse to the CRTC. That said, this does not mean the narrower interpretation leads to an absurd result; it is not unreasonable, illogical, incompatible with other provisions of the Act, does not defeat the purpose of the Act, nor does it render any part of the Act pointless or futile (Rizzo, at para. 27).
[78] I am not persuaded that a narrow interpretation of “transmission line” is likely to lead to an absurd consequence of impeding the Act’s overall objectives. There was evidence before the CRTC that delays in accessing public property could run up to two years. But the CRTC found that municipalities or other public authorities have not “systematically” interfered with the deployment of 5G infrastructure (CRTC Decision, at para. 475). This factual finding is entitled to deference. The carriers have failed to establish that regulating access to the wireline and wireless equipment in a network differently would frustrate the orderly deployment of the carriers’ telecommunications infrastructure — 5G or otherwise — across Canada.
[79] Further, in my view, there is no absurdity in the fact that some equipment, such as wire or cables, are subject to the access regime but other equipment, such as antennas are not. As I earlier noted, antennas have specific impacts and risks that are not engaged when carriers install, maintain and operate wires or cables. The access regime, by contrast, has clearly been designed with linear infrastructure in mind. As a result, subjecting all connected infrastructure, including 5G small cell antennas or previous-generation large cell antenna towers to the access regime without regard for these impacts and risks could give rise to concerns about unintended consequences. The same is true even if I draw a distinction between 5G small cell antennas and large cell antennas — they have many of the same impacts and risks, such as frequency interference, exposure safety, etc. . Piekut v. Canada (National Revenue)
In Piekut v. Canada (National Revenue) (SCC, 2025) the Supreme Court of Canada dismissed an insolvency appeal, here involving "when a bankrupt is released from their government student loan debts under the Bankruptcy and Insolvency Act".
Here the court considers the statutory interpretation principle of 'absurdity':[98] Courts should interpret legislation under the presumption that a legislature does not intend to produce absurd consequences. An interpretation of a statutory provision produces absurd consequences if, for example, it frustrates the purpose of the legislation; creates irrational distinctions; leads to ridiculous or futile consequences; is extremely unreasonable or unfair; leads to incoherence, contradiction, anomaly, or disproportionate or pointless hardship; undermines the efficient administration of justice; or violates established legal norms such as the rule of law (Rizzo, at para. 27; La Presse, at para. 54; R. v. Basque, 2023 SCC 18, at para. 73; Downes, at para. 51; Sullivan, at §§ 10.02-10.03; Côté and Devinat, at paras. 1514-19). . BNSF Railway Company v. Greater Vancouver Water District
In BNSF Railway Company v. Greater Vancouver Water District (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal [under the Canada Transportation Act, s.41(1)], here from a CTA decision that "found the rerouting works suitable and authorized the District to construct and maintain them at the District’s cost".
Here the court considers the statutory interpretation role of 'absurdity':[133] When legislation is open to more than one interpretation, an interpretation that leads to negative consequences or an absurd result should be rejected: Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031, 24 O.R. (3d) 454 at 1081-1082; Rizzo at para. 27; Porter v. Boucher-Chicago, 2021 FCA 102 at para. 41. An interpretation that is extremely unreasonable or inequitable, illogical or incoherent, or incompatible with other provisions or with the object of the legislative enactment can be absurd: Rizzo at para. 27. . Aviva Insurance Company of Canada v. Danay Suarez
In Aviva Insurance Company of Canada v. Danay Suarez (Div Ct, 2021) the Divisional Court quotes from the leading statutory interpretation case of Rizzo on absurdity:[33] In Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), Iacobucci, J. noted:It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88). (para. 27)
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