For the benefit of readers, I have reprised my commentary on the Supreme Court’s recent Pepa case, which was included in Issue #185, sent before the two week hiatus. This is a case worth reading.
Any significant cases missed over the two week hiatus will be covered in coming issues.
Pepa v Canada (Citizenship and Immigration) , 2025 SCC 21 (June 27, 2025)
Category: Reasonableness review/remedy.
Context: Section 63(2) of the Immigration and Refugee Protection Act 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 under subsection 44(2) or made at an admissibility hearing.” The case centers on Ms. Pepa, who faced a removal order after disclosing a surprise marriage upon her arrival in Canada. Despite holding a permanent resident visa, its expiration prior to her admissibility hearing led the Immigration Appeal Division (IAD) to conclude it lacked jurisdiction, relying on its interpretation of judicial and administrative precedents [68]. Both the Federal Court and Federal Court of Appeal found the IAD's decision reasonable.
Issue: Is the IAD’s decision reasonable? If not, what is the appropriate remedy?
Holding: Martin J (for a majority) concluded that the IAD decision was unreasonable, and held that there was only one reasonable interpretation of the statute: that visa validity for appeal purposes is assessed at the time of arrival in Canada [129]. As a result, she would “remit the matter to the IAD for determination, with Ms. Pepa’s right of appeal now established” [131].
Rowe J dissented in part on remedy. He worried that Martin J “takes reasonableness analysis further than it need go; in so doing, this Court runs an unnecessary risk of creating its own absurdities” [150]. He would have remitted the matter to the IAD for redetermination in light of the Court’s reasons. Rowe J also—interestingly—notes that this question is one pertaining to the IAD’s jurisdiction, that such questions of law relating to jurisdiction were not “ ‘abolished’” by Vavilov, though the standard of review for such questions is reasonableness [138].
Côté and O’Bonsawin JJ dissented, concluding that the IAD decision was reasonable. The dissent accuses the majority of “slid[ing] into disguised correctness review” in its conclusion [217].
Analysis: This is an important case for the methodology of reasonableness review. Along the way, the majority and dissenting opinions diverge on several issues. Pepa provides a good opportunity to refresh our understanding of reasonableness review by pointing out how the majority went “too far” at several points of its analysis. More broadly, the rules of reasonableness review are not “choose your own adventure” novels. They should be consistently applied across a range of cases. The Supreme Court, in its post-Vavilov case law, has sometimes failed to do so.
Martin J’s majority opinion is supported by three pillars. First, the IAD’s decision was faulty because it failed to properly rationalize appropriate precedents. Second, and because of its faulty reliance on the precedents, the IAD failed to conduct an analysis of s.63(2) at all; had it done so, it would have reached the result preferred by the majority. Finally, because there is only one reasonable result, the case should be remitted to the IAD stipulating this result.
Precedent
Martin J offers some helpful guidance on the first pillar of precedent. As Vavilov notes, administrative decision-makers may be required to explain departures from judicial or internal administrative precedent for a decision to be reasonable. The IAD purported to do so here. But Martin J finds its attempt wanting. For one, the IAD treated a particular case as applicable even though, in that case, the Federal Court was interpreting a different statutory provision that was arguably materially different [69]. Moreover, the IAD relied on cases that were arguably factually and legally distinguishable [76-77]. I take the point to be that there is a high bar on reasonableness review: “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” [85]. Côté and O’Bonsawin JJ disagree that the IAD treated these precedents inappropriately, but this simply turns on a difference in what Vavilovian reasonableness review requires. On normal reasonableness review, it might be possible for the IAD to justify its interpretation if it explained why these cases were still relevant—as we shall see, there is a way to interpret this provision to achieve the result the IAD reached.
This is a salutary clarification in Pepa, providing concrete guidance that mere citation of facially applicable precedents, without robust analysis of their material relevance and distinguishing features, is insufficient for a reasonable decision. This is consistent with the general thrust of Vavilov. It will not be possible for a decision-maker to survive judicial review by simply reciting arguments put before it, ginning them up to suit a pre-determined outcome, and declaring that the decision is informed by them. Same here. Mere citation of facially applicable precedents, without more, is not enough, and the IAD should have explained why the cases it relied on were still relevant. There is an analogy to the reasons of the Rowe J in the majority in York Region District School Board v Elementary Teachers’ Federation of Ontario , 2024 SCC 2 (Issue #141). There, on the Charter, it was not enough to make isolated references to the SCC case law on the Charter—Rowe J was reticent to conclude that this satisfied the need for a “clear acknowledgment and analysis of that right,” required under the Vavilov framework (York Region, at para 94).
Statutory Interpretation
The majority arguably takes a wrong turn when it builds out the second pillar of its opinion. It is true, as Martin J says, that the IAD’s failure to even interpret the provision itself—because of the misuse of precedent— is fatal on reasonableness review. But this does not mean that the Court itself should embark on the interpretation analysis for the first time. Having found the decision unreasonable on the precedent pillar, it was unnecessary for the majority to then specify its own interpretation of s.63(2).
The majority defends this move by saying there is only one reasonable manner in which to interpret the provision. But this begs the precise question in issue. It is for the IAD to interpret the legal meaning of the provision on reasonableness review where it could, in theory, justify a different result. The IAD had not turned its attention to the provision, led astray by the precedent issue. Reasonableness review was required to correct that error. Judicial humility should have cautioned against going any further.
And not for nothing, but the question of statutory interpretation in this case is a close call, suggesting that the IAD should probably get a crack at it. I do not have clear views one way or another, but the point is that the question is contested. Emphasizing the “robust” review required by Vavilov, Martin J concludes that “it is not reasonable to conclude, without clear wording or a compelling justification, that Parliament intended that a person could lose their appeal before any hearing on the merits took place and before any removal order was issued” [102]. Again, this may be so: the IAD’s decision suffers from failures of justification, and a failure to grapple with the real stakes to Pepa. But it is quite another thing for Martin J to say that “robust” reasonableness review—whatever that means—requires the Court to declare all other plausible interpretations of the provision necessarily absurd [128, see also Rowe J at para 150]. Reasonableness review is not a judicial sword to strike down decisions (or potential decisions) that are absurd or unfair in the abstract. It is a review disciplined by rules and a posture of appropriate restraint. That restraint seemed to be lacking here.
It is worth spelling out how the question in this case was contested, warranting this posture of restraint. First, the text of the provision matters. Martin J’s statutory interpretation analysis does not refer to any of the Supreme Court’s recent guidance on interpretation, emphasizing the text as the “anchor” of the interpretive exercise (see, for example, CISSS A,2024 SCC 43 at para 24, see Issue #162). Instead, Martin J puts inordinate focus on the alleged “absurdities” created by the IAD’s interpretation and the impact on Pepa. For their part, however, and emphasizing the recent cases on interpretation, Côté and O’Bonsawin JJ note (as did de Montigny J in a relevant decision that the IAD considered) that the text of s.63(2) is written in the present tense, requiring a valid and subsisting visa [197]. de Montigny J also noted that the purpose of the provision was to provide a right of appeal for those with valid visas. Granted, Martin J concludes that the text does not answer the question, and that the modern approach “does not end with consideration of the text of the provision alone” [91]. This is because, to her, the provision does not stipulate when the valid visa must be held. But the tense issue does provide a signal in one direction because the present tense is used coupled with the existence of a removal order. This means, as Côté and O’Bonsawin JJ explain, that “Accordingly, foreign nationals who once ‘held’ a visa do not fall within the ambit of the provision” unless they hold the valid visa at the same time as the removal order [197] . Martin J’s opinion could have explained why this argument was not dispositive in light of the recent SCC precedents and the design of s.63(2), and at any rate, it shows that this question of interpretation is a close run thing.
Second, reliance on the absurdity canon is always tricky business. One judge’s absurdity or “gap” is another judge’s reasoned legislative choice. The Supreme Court’s recent case of Telus v FCM , 2025 SCC 15 (Issue #176) accordingly reflects a conservative approach to declaring particular results “absurd,” even if the results in question are inefficient or unjust in some sense. Legislation always involves gaps or choices that might appear “absurd” in isolation, but which may play a role in a broader statutory context. A declaration of an absurdity runs the risk of upsetting Parliament’s design, for which it—and its delegates—are responsible (see, again, Telus v FCM, at para 71). Martin J does not demonstrate the same worry about broad declarations of absurdity.
But in his partial dissent in Pepa, Rowe J shrewdly notes this worry. As he says, the majority’s analysis could impose a form of judicial absurdity because the IRPA and associated regulations “contain multiple provisions that refer to ‘holding’ or a ‘holder’ of a visa…” [151]. A court cannot contemplate, over the complexity and breadth of the IRPA, what the consequences of its absurdity declaration may be on these provisions [152]. The fact that the IRPA might insist that the appeal is lost upon the expiration of a visa is not necessarily absurd at large. For this reason, I query whether the majority’s interpretation is as clear as it thinks. And, more fundamentally, the interpretation itself was unnecessary.
Remedy
Finally, the third pillar of the majority opinion pertains to remedy. I agree with Côté and O’Bonsawin JJ that Martin J’s summary and analysis of the relevant law is correct [216]. But in application, her analysis is wanting. She correctly states that because legislatures generally speak with “clarity and purpose,” there “should not be a surprise that there are cases in which one reasonable interpretation may arise…” [125]. This, for Martin J, will be “more plausible when the question is interpretation is narrow, the statutory language is highly precise, and there are functionally very options to choose from” [125]. So far, so good. But Martin J’s decision to remit in these case suffers from the same flaws as her decision to embark on a full-blown interpretation exercise. As she herself noted, the term “holds” is “open-ended” [91], and the resolution of the question of interpretation turns on considerations of absurd consequences. For the reasons I’ve mentioned above, this is a thin reed on which to declare only one reasonable result, and there may be good reasons for the court to stay its hand—again, this is reasonableness review.
More generally, I do fret about the manner in which the Supreme Court is conducting reasonableness review in some cases. In Mason, 2023 SCC 21 , the Cabinet Mandate Letters Case , 2024 SCC 4 , and now Pepa, the Court has said (i) there is only one reasonable result; and (ii) there would be no purpose in permitting the decision-maker to interpret the law anew. It has done so in surprising ways: it has held the IAD to arguments not put before it; it has subjected Ontario privacy decision-makers to academic definitions of Cabinet privilege endorsed by the Court; and it has, on the basis of absurdity, interpreted a provision of the IRPA before the IAD really got down to it. In the Cabinet Mandate Letters Case, the declaration of “one reasonable result” went largely unexplained. In Pepa, it is explained, but the explanation leaves much to be desired and begs the very question in issue.
I worry, as Côté J did in Mason and the Cabinet Mandate Letters Case, that these cases represent a blurring of reasonableness and correctness review. This worry makes Rowe J’s astute caution about results-oriented reasoning apposite. He says, in Pepa, that “[s]uch caution is warranted to avoid slipping into a pattern of “disguised” correctness review in which courts correct decisions with which they disagree and defer to decisions with which they agree” [148]. When the normal rules of reasonableness review are bent without sufficient explanation, the old worry that the standard of review is just a shell game emerges. It is one thing to insist upon reasoned justification, as Martin J does at several points of Pepa. It is another to, under the guise of “robustness,” create a heretofore unknown definition of reasonableness review that bears its teeth when the Supreme Court says so.
As I noted in Administrative Law Wrapped, 2024, some lower courts are reasoning their away around the Supreme Court’s experimentation with reasonableness review. It is worth pointing out that at least one court, even after Cabinet Mandate Letters, was compelled to follow Côté J ‘s attempt to preserve the distinction between reasonableness and correctness. As I explored in Issue #127, in 2024 BCSC 345, the Court (per Gomery J) walked through the door seemingly left open by Cabinet Mandate Letters and recognized Cabinet confidentiality as a “general question of central importance.” In Klos v Canada (Attorney General), 2023 FCA 205 , Stratas JA addressed Mason, concluding that it should not be taken to reverse well-worn rules of administrative law, including the requirement for parties to lead arguments at first instance (see Issue #109). In the best tradition of Canadian administrative law, these are lower courts doing their job to point out missteps above.
A final note. Rowe J notes that jurisdictional questions still exist. This is a useful clarification. Vavilov did not purport to “abolish” such questions—it could not do so, any more than it could “abolish” questions of law. It merely declared that reasonableness review is the appropriate standard. This conclusion did mean, however, that it would be increasingly hard to identify such questions because it would no longer be necessary to do so for the standard of review analysis. At any rate, there will be questions pertaining to—strictly speaking—whether a decision-maker can hear and decide a case. Those questions fall to resolution under the normal tools of reasonableness and statutory interpretation, as questions of law like any other.
Melnichenko v Canada (Foreign Affairs), 2025 FC 1185 (July 3, 2025)
Category: Reasonableness review/Charter values.
Context: This is a judicial review of a decision of the Minister of Foreign Affairs, deciding that Melnichenko’s name should not be “delisted” under the Russia Regulations. These Regulations “set out a range of restrictions and prohibitions on activities related to persons” listed [3]. The Regulations are enacted under the primary authority of the Special Economic Measures Act, which grants the Governor in Council authority to “restrict or prohibit certain activities to further the purpose of the Act…” [23]. Where the Minister has “reasonable grounds to believe” that an individual is an “associate” of senior official(s) of Russia, he can be listed.
Issue: Is the Minister’s decision reasonable?
Holding: Yes.
Analysis: Kane J concludes that the Minister’s decision is reasonable. She begins in exactly the right place under the recent jurisprudence on statutory interpretation, noting the relative generality of the term under interpretation. The language of the SEMA “gives the Governor in Council broad authority to enact regulations as ‘necessary’ to achieve SEMA’s objectives” [85]. For her, broad language justifies a broad interpretation of the term “associate.” The applicant tried to argue that the term “associate” denoted a narrow definition that would encompass “comrades” “allies” or “partners,” thereby excluding him [88]. He relied, in part, on the Oxford English Dictionary for this argument [89]. However, Kane J properly focuses on the ordinary meaning of the term “associate.” Dictionary definitions are probative, but not definitive, and the lodestar (absent evidence to the contrary) is the ordinary, conversational meaning of the term (Wittgenstein and all that). For her, the ordinary meaning of the term indicated a broad defintiion that captured Melnichenko’s involvement with Russian contacts.
Melnichenko also, creatively, tried to raise a Charter values argument. He argued that the regulatory sanctions imposed upon him “disproportionately impact his freedom of association” [103]. He appears to have tried to raise the argument that the Regulations—while not facially unconstitutional—impacted the Charter value underpinning the Charter right of freedom of association by penalizing him for his purported associations.
This argument shows everything that is wrong with Charter values. First, as Kane J properly notes, this argument was not before the Minister because Melnichenko did not raise it [96]. As a result, it should not be entertained. While CSFTNO, 2023 SCC 31 undermined the normal rules of administrative law by inviting consideration of Charter values for the first time on judicial review, Kane J follows the bulk of lower court precedent rejecting this invitation (see Issue #163).
Second, the argument demonstrates how Charter values can justify using valuable court time to address covert efforts to challenge the constitutionality of legal instruments. Kane J is alive to this worry. For one, she notes that the SCC failed to provide “further guidance” in CSFTNO about the actual definition of a Charter value [102]. This is an understatement, but it is a point worth emphasizing. Second, she notes that an undefined Charter “value” cannot be used to impugn the Regulations. Their purpose “is to sanction those who are associates of persons engaged in violations of international law” [104]. Absent a clear constitutional argument against these Regulations, a vague Charter value cannot unravel them.
Ontario Association of Chicken Processors v Ontario Broiler Hatching Egg & Chicken Commission, 2025 ONSC 4174 (July 16, 2025)
Category: Application of the reaosnableness standard.
Context: This application for judicial review was allowed at the hearing. The underlying decision is one of the Agriculture, Food and Rural Affairs Appeal Tribunal. The Tribunal upheld a decision of the Ontario Broiler Hatching & Egg Commission setting a formula for the pricing of chicks sold to chicken farmers.
Issue and Analysis: The case turned on the Tribunal’s treatment of expert evidence. In “conclusory” reasons, the Tribunal merely declared that it found particular expert reports compelling, reliable, or acceptable [9]. Immediately, this should make us wonder whether the Tribunal’s reasoning meets the standard of Vavilovian reasonableness review.
The Court in a per curiam decision does not think so. It says that “[i]t is hard to imagine more conclusory reasons than these” [10]. Where there is a contested issue between the parties, Vavilov’s reasonableness review calls for the decision-maker to “show their work” on that issue. Here, there “was a seriously contested clash of expert evidence on questions of importance to the parties” [13]. Where there is such contested evidence, it is no different than any other issue of controversy in administrative law. It is the job of the decision-maker to “roll up its sleeves, analyse the substance of the expert evidence, and in particular, the points of difference between competing expert opinions, and then to explain – with reference to the expert evidence – why one analysis is preferred over another” [11]. Boilerplate is simply not enough.
See also Paul Daly, who was co-counsel on this case.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own.