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| Sara Blake |
Dorinela Pepa immigrated to Canada as an accompanying dependent of her father. Her father handled the family’s applications and obtained permanent resident visas before they departed for Canada. He did not know his 20-year-old daughter had secretly married just before their departure; she did not know the immigration forms required disclosure of any change in marital status before departure.
On arrival, she honestly disclosed her marriage. The immigration officer was concerned that she had misrepresented her marital status in the application. Her admissibility hearing resulted in a removal order barring her from entering Canada.
Her appeal to the Immigration Appeal Division (IAD) was dismissed because the statute grants a right of appeal from a removal order only to “a foreign national who holds a permanent resident visa.” Pepa’s permanent resident visa was valid when she arrived in Canada and was referred to the admissibility hearing, but it expired nine days before that hearing took place. The IAD ruled that she had to hold a visa as at the date of the removal order, by which time her visa had expired. She argued it was the date of her arrival in the country, prior to its expiry.
Federal Courts dismissed her judicial review. The Supreme Court of Canada ruled she had a right of appeal to the IAD and remitted her appeal to the IAD for decision on the merits.
The court applied the robust reasonableness standard of review to the question of statutory interpretation.
The IAD did not do any statutory analysis, relying instead on prior interpretations.
The court ruled that, if the interpretation of a statutory provision is disputed by a party, the burden of justification can be met only by doing a proper statutory analysis. Failure to do a full text, context and purposes analysis is unreasonable.
The majority of the court ruled that the IAD interpretation could not be justified on the cases they cited. The court said, “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.” That is, the prior interpretations must concern the identical statutory provision; they must be based on a full text, context and purposes statutory analysis; and they must concern similar factual circumstances.
The court said, “In this case, the precedents the IAD relied on were not sufficient to resolve the statutory interpretation question before it, nor did the IAD justify or explain their continued currency where they concerned an outdated statutory provision or starkly different facts.”
The IAD erred in relying on a Federal Court interpretation of a pre-amendment version of the provision. The prior version specified that the individual must hold a valid resident visa “at the time that a report with respect to the person was made by an immigration officer.” The provision had been amended to remove that requirement, replacing it with a provision that granted a right of appeal to “a foreign national who holds a permanent resident visa”; which is stated in the present tense and no longer specifies a point in time. The court ruled that, as the provision had been amended, the Federal Court decision was no longer binding authority.
The IAD erred in relying on other IAD decisions that had relied on the Federal Court decision. I caution that a line of cases, which cite a principle from an old case decided in different circumstances, might be a house of cards. They all fall, as they did in this case.
The IAD also erred in relying on prior cases concerning different factual circumstances, which gave rise to different questions of statutory interpretation. The cases concerned whether visas were valid at the time of entry. They did not concern a valid visa that expired after entry.
It was not wrong to discuss cases concerning similar issues but, as none were on point, the IAD should have done proper statutory interpretation on the question raised by Pepa.
The court then proceeded to conduct the statutory analysis that the IAD should have done. The court analyzed the text of the provision, noting that it speaks in the present tense — in that the person must hold a visa — but, unlike the previous version, it does not indicate at what point in time.
The court then identified that the purpose of the provision is to grant a right of appeal from a decision on admissibility. It ruled that the IAD erred in ruling that Pepa had to hold a visa at the date of the removal order even though the section does not require it.
The court then analyzed the consequences of an interpretation for an individual. These visas typically expire a short time after they are issued because their purpose is to allow time for foreign nationals to travel to Canada. They do not allow enough time for decision-making processes or other delays. The court noted that, on the IAD’s interpretation, the visa holder could lose her right of appeal solely because of the time taken by the typical process leading to a decision that triggered it. The court ruled that Parliament could not have intended such an absurd and arbitrary interpretation.
The court then turned to the statutory context, noting other provisions respecting foreign national immigrants, including a provision requiring that they hold a visa on entry to Canada — the same present tense: “hold” — at a point in time: “entry.” The court also noted the immigration department manual contemplates the expiry of a visa before the conclusion of admissibility processes yet still permits appeals.
Separate from the question of statutory interpretation, the court considered the reasonableness of the IAD decision in light of the significant consequences for Pepa. She will lose the emotional and financial support of her family if she is deported, while they remain in Canada.
The majority of the court concludes that there is only one reasonable interpretation of the statutory provision. Pepa has a right of appeal because she held a valid visa at the time of entry to Canada. Justice Malcolm Rowe agreed with the majority but ruled that the question of statutory interpretation should be remitted to the IAD for decision in light of the majority’s reasons.
Two judges dissented, ruling that the IAD could reasonably rely on the prior cases. The dissent did no statutory analysis beyond describing what the precedents say.
In the training that I offer, I address the common mistakes that result in poor-quality interpretation and unpack the three-step process of interpreting the text, context and purposes of a provision.
Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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