Remedies for Unreasonable Administrative Action after Vavilov

Abstract

This article comments on Pepa v. Canada (Citizenship and Immigration), arguing that it departs from the Supreme Court’s previous guidance on remedies in an unprincipled manner. The article outlines the remedial framework established in Canada (Minister of Citizenship and Immigration) v. Vavilov, traces its development over the past five years, discusses key departures from the general rule of remittal, and highlights the principles these departures reflect. It then examines the approach to remedies adopted in Pepa. This assessment shows that the Pepa majority’s invocation of the “single reasonable interpretation” exception to the general rule of remittal departs from the core Vavilov values of restraint, deference, justification, and respect for administrative action. In this sense, Pepa does not fit the pattern of principled exceptions seen in earlier cases. Rather, it is a case in which remedial practice and principles are out of alignment. As a result, while Pepa is a strong example of persuasive reasonableness review, its application of the law of remedies should be read with caution.