Federal Court of Appeal Hears BC Ostrich Farm’s Case Against Cull Order

The Federal Court of Appeal has heard arguments in a case that challenges a cull order for hundreds of ostriches at a B.C. farm over avian flu concerns.

The Canadian Food Inspection Agency (CFIA) ordered about 400 birds at Universal Ostrich Farm in Edgewood, B.C., to be culled after 69 ostriches died in an avian flu outbreak on the farm in December 2024 and January 2025.

The farmers oppose the cull, saying their birds have immunity from the virus and are being used for research.

A Federal Court upheld the cull order in June, but the farmers appealed that decision during a one-day hearing on July 15. They had previously applied for a judicial review of the CFIA order, but it was denied.

The daughter of the farm owners, Katie Pasitney, thanked supporters in a video posted online prior to the trial.

“It’s going to be a long day, but I have a lot of hope that we can repair the erosion of trust between these [government] organizations and our farmers and our Canadians,” Pasitney said in the video posted July 15.

“[As] truth, transparency, science evolves, policy needs to evolve.”

There is no indication when the court will release its ruling, but Justice Mary Gleason said the three-judge panel aims to make a decision quickly.

The CFIA said it was awaiting the decision, and told The Epoch Times in an email that the quarantine requirements for the birds must still be met during the appeal process.

“Universal Ostrich Farms is an HPAI [highly pathogenic avian influenza] infected premises and must comply with the quarantine requirements issued by the CFIA under the Health of Animals Act,” a spokesperson said in the email.

Hearing

The lawyer for the farm, Umar Sheikh, told the appeals court that the CFIA had ordered the cull about 41 minutes after tests for avian flu came back positive.

Sheikh argued that evidence shows ostriches do better than other birds when there is an avian flu outbreak, noting they have a lower mortality rate than chickens.

CFIA attorneys said that in 2004 the agency had adopted the “stamping out” policy, as defined by the World Organisation for Animal Health, to control the virus. The policy states that if highly pathogenic avian flu is discovered, steps must be taken to destroy any animals or things on the property that were infected or exposed, and the environment must be decontaminated.

They argued that because of the policy, the inspector who received a positive test at the farm didn’t have discretion about whether to order the animals to be destroyed.

This case is believed to be the first time that the policy has been used on ostriches, the lawyers noted.

The court was also told that the CFIA considered testing each animal and destroying those that were infected, but it was determined that it could not mitigate the risk of spread.

Sheikh aruged the CFIA is applying the stamping out policy in a one-size-fits-all manner and said it is not appropriate for hundreds of birds to die based on a decision made in December, with no further testing conducted. He noted no ostriches have died on the farm since January, and the farmers believe all the birds have recovered.

Universal Ostrich Farms wants the CFIA to return to the farm and retest the ostriches.

CFIA Says Risk Too High

CFIA has said the birds have a mutation of the avian flu that has not been seen anywhere else in Canada, and the birds present a risk to the public.

“Allowing a domestic poultry flock known to be exposed to HPAI to remain alive means a potential source of the virus persists. It increases the risk of reassortment or mutation of the virus, particularly with birds raised in open pasture where there is ongoing exposure to wildlife,” CFIA said in a statement on its website.

It said the type of infection found at the farm had been associated with a human infection in Ohio. CFIA noted that a human case of bird flu in B.C. required an extended hospital stay for the patient who required “critical care.”  The agency also said there had been “a number of” human cases in the United States, including one death.

The agency said it has fined the farm $20,000 for failing to co-operate with anti-avian flu measures. It also said it has issued two violation notices to the farm for failing to report illnesses and deaths among the birds in 2024, and for failing to follow quarantine orders.

CFIA said the farm has not provided evidence of scientific research being done on the birds.

Following the cull order, protesters began gathering at the farm aiming to protect the birds from harm.

The case has drawn international attention, including from members of U.S. President Donald Trump’s administration, such as Health Secretary Robert F. Kennedy Jr., who wrote a letter to the CFIA head, asking to stop the cull.

Dr. Mehmet Oz, administrator for the U.S. Centers for Medicare and Medicaid Services, has offered to take in the birds in at his Florida ranch.

The Canadian Press contributed to this report.