This article was authored by Justin Toh, Canadian Immigration Lawyer.
La version française de cet article se trouve ici.
Let’s break down Pepa, 2025 SCC 21! The Supreme Court of Canada’s latest major immigration law judgment offers helpful refinements and clarifications regarding the principles of statutory interpretation (and on how courts can apply them during reasonableness review).
The Court found there is only one reasonable interpretation of s. 63(2) of the Immigration and Refugee Protection Act: that a person who arrives in Canada holding a valid permanent resident visa may later appeal to the Immigration Appeal Division, even if that visa expires after arrival.
[130] The purpose of the expiry date on the visa, within the sequence of the IRPA, is that the visa holder must travel to Canada and present themself for examination before that expiry date is up. Although the visa holder must travel to Canada prior to the expiry date, examinations and investigations may and usually do extend past this date, as was the case for Ms. Pepa. As the expiry date on the visa is based only on the earliest expiry date of the documents underlying it (the applicant’s passport or medical documentation), if a visa holder has a passport with a fast-approaching expiry date, for example, the visa’s expiry date could pass quickly after the date of arrival in Canada. Only this interpretation protects the rights of appeal granted to holders of permanent resident visas and acknowledges the high stakes of losing a right to appeal a removal order.
Careful readers will notice this paragraph centres two tools of statutory interpretation. The first is the PRESUMPTION AGAINST ABSURDITY. Decision makers must read the law as Parliament intended. Because we can fairly assume Parliament does not intend absurd outcomes, a decision maker needs to provide strong justifications if they settle on an interpretation that seems absurd. But what makes an interpretation of the law look absurd?
One way to tell is to look at whether it makes rights & privileges DEPENDENT ON ARBITRARY FACTORS. And in Pepa, the Court clarified that processing speeds can be one such arbitrary factor – especially where it could mean appeal rights are determined even before there is a decision to appeal.
[21] 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 documents underlying it: the applicant’s passport or medical documentation. …
[99] The IAD’s approach and outcome renders a visa holder’s appeal eligibility contingent on how quickly any post-arrival inadmissibility case brought against them moves through the system, a result that is particularly problematic for visa holders whose visa expires within a short period of time. The IAD’s interpretation results in the possibility that a visa holder can lose their right to appeal before the decision is taken — in Ms. Pepa’s case, before the hearing has even begun. The question is whether it is reasonable to assume that Parliament intended that result. Based on the provision’s wording, purpose, and legislative history, Parliament could not have intended a result which is both absurd and arbitrary. …
[102] … 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. …
The second tool is HUMAN IMPACT. This point holds particular interest for me, as it bears directly on the arguments I presented for the Canadian Association of Refugee Lawyers. The Court underscored that when there are multiple ways to interpret a law, we should consider the practical consequences of each option and whether Parliament intended them. Further, if some options have harsh consequences – like family separation, a ban from Canada, or criminal penalties – then a decision maker should justify not only why their selected option reflects the legislature’s intent, but also why it reflects it better than the other options.
[117] … This element may be particularly relevant in the immigration context, which often involves vulnerable individuals …
[118] The impacts on the individual here are significant. Ms. Pepa will be separated from her family and barred from the country for five years. …
[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 …
The most important development, however, may be the Court’s clarifications on which uses of PRECEDENT CASE LAW are reasonable. Decision makers should reference jurisprudence and precedents, but they must invoke then in a logical, coherent, and consistent manner – not blindly. The logic of the precedent must itself be sound, and it must be meaningfully applicable to the present facts/legal provisions.
[64] … 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. …
[76] … Reliance on a clearly distinguishable non-binding case, and the subsequent IAD decisions which followed it, without further analysis themselves, cannot be reasonable without explanation of the reasoning behind such a conclusion. …
[79] … there was inconsistent treatment of these cases as one was disregarded and the other was treated as binding. …
[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.
In parallel, decision makers should also look to OTHER RELATED SECTIONS FROM THE SAME LEGISLATIVE SCHEME. Those sections, as well as the OPERATIONAL POLICIES AND GUIDELINES that implement or expand on them, can reveal the meaning of provisions with similar wording or substance.
[108] There are other related provisions and statements in the guidelines which show the relevance of coming into the country with an unexpired visa and allow for the granting of permanent resident status even when the visa has expired. …
[113] Overall, this context was not considered by the IAD despite the presence of related provisions and applicable guidelines …
Finally, the Court affirmed that decision makers should look at the LEGISLATIVE HISTORY. If the present law’s wording differs from the previous law, the change in wording can reveal Parliament intended a change.
[82] … Parliament could also have chosen to add a point in time at which the individual must hold a valid visa in order to retain their appeal right. It did not. Instead, it explicitly removed the specific point in time for when a person must be in possession of the valid visa required under the previous provision, and also removed the word “valid”. …
In all, the Court in Pepa built upon the robust Standard of Review framework it established in Vavilov. Where the meaning of legislation is in dispute, decision makers must address comprehensive factors, and conduct an independent analysis that justifies how the logic of invoked precedents maps to the circumstances of the individual case.
Certainly, individuals seeking life-changing or life-saving remedies will appreciate the Supreme Court’s insistence upon decisions that respond to those stakes. But will administrative decision-makers respond by providing more thorough and thoughtful justifications in their reasons? Or, given resource constraints, will we instead see increased interventions on judicial review by the courts? Only time will tell.
