CCLA Welcomes Supreme Court of Canada Decision Reinforcing Meaningful Statutory Appeal Rights

CCLA welcomes the decision of the Supreme Court of Canada (SCC) in the case of Pepa v. Canada (Minister of Citizenship and Immigration), which reinforces the right to a statutory appeal and elaborates on the approach to the review of administrative decisions.  

This case concerned the right to challenge a removal order before an administrative tribunal, in this instance, the Immigration Appeal Division (IAD) of the Immigration and Refugee Board. CCLA intervened at the SCC to ensure that there is meaningful access to statutory appeal rights in adjudicative decisions for permanent resident visa holders impacted by administrative delays.

CCLA argued that statutory appeal rights must be interpreted consistently with the fundamental principles of the rule of law and procedural fairness.  

The SCC held that the IAD’s interpretation of s.63(2) of the IRPA was unreasonable. The statutory provision’s narrow interpretation resulted in the denial of the right to a statutory appeal because the applicant’s permanent resident visa had expired before the issuance of the removal order. The majority of the Supreme Court rightly found that it would be not only arbitrary but also absurd if a statutory appeal right could be lost based on administrative delays before the decision to be appealed was issued. 

The Court determined that a statutory appeal right must be applied meaningfully and had to account for the severe consequences of its decision for the applicant. The SCC allowed the appeal, set aside the prior decisions and remitted the case to the IAD to hear its merits with the right of appeal established. 

The decision in this case is particularly important for vulnerable individuals, as the Court found that in such cases there may be a high burden of justification on the part of administrative decision makers who must take into account and justify any harsh consequences for those affected by the decision., such as in the immigration context. 

CCLA is grateful to Nadia Effendi and Teagan Markin of BLG LLP for their excellent pro bono representation in this case. 

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