A cull of some 400 B.C. ostriches that were exposed to avian flu can proceed, one of Canada’s top courts ruled on Thursday.
The Federal Court of Appeal rejected an appeal by Universal Ostrich Farms in Edgewood, B.C., seeking to block a Canadian Food Inspection Agency (CFIA) cull order.
In its decision, the court concluded that the CFIA’s decisions were “all reasonable” and that the agency has the “broad discretion” under law to order the destruction of animals based on mere suspicion of infection.
In a social media post, farm owner Katie Pasitney called the ruling “devastating news.”
“The Court has given a unanimous no decision. There is no stay order in place — which means that at any moment, the Canadian Food Inspection Agency could come and kill our healthy ostriches,” she wrote, adding that the farm would try to secure a legal stay order next week.
“These animals are not just ‘livestock.’ They are living beings that have thrived against all odds. They are a symbol of resilience, of natural immunity, and of what’s possible when we stand up against broken policies that destroy life instead of protecting it.”
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Pasitney said she was “opening our farm gates” on the weekend and calling on supporters to come and “sit with animals” and record interactions with the CFIA.
“Absolutely no violence. Peaceful only,” she added.
The CFIA ordered Universal Ostrich Farms to cull about 400 birds after 69 ostriches died in December and January.
The agency tested two of the dead birds in January and found a “novel reassortment” of the highly contagious avian flu virus, which had not been seen anywhere else in Canada.
At trial, the farm had challenged the CIFA’s “stamping-out” policy, which requires the depopulation of animals that risk transmitting highly-pathogenic avian flu (HPAI).
The farm argued the CFIA had failed to consider the particularities of ostriches, did not consult with ostrich owners in developing the policy, and had not conducted additional testing on birds at the farm or allowed for a more targeted culling.
In its decision, the court concluded that the stamping-out policy overall was a reasonable response to “the risks of HPAI to domestic disease control, public health, and Canada’s ability to export poultry to its international trading partners,” and was authorized under Canada’s Health of Animals Act.
The court ruled that while the CFIA had not consulted with ostrich owners in developing the policy, it had reviewed scientific studies demonstrating ostriches’ susceptibility to avian flu.
It further ruled that culling the entire flock without additional testing was reasonable, as the Health of Animals act “explicitly allows for destruction in the face of a mere suspicion of infection or exposure to suspected infection.”
“It is apparent that the Exemption Committee considered the health status of the flock, the biosecurity measures in place, and the importance of the flock to the appellant and its principals,” the court ruled.
“After considering whether it could allow the appellant to keep a subset of the ostriches, the Committee determined that it was just too risky to undertake ‘selective culling’ or otherwise allow the infection to ‘burn out’ on the farm as the appellant proposed.”
Over the course of the marathon court battle, the fate of the ostriches has become national and international news, with the farm drawing the support of Alberta Premier Danielle Smith and officials in U.S. President Donald Trump’s administration including U.S. Centers for Medicare and Medicaid Services administrator Dr. Mehemet Oz and Secretary for Health and Human Services Robert F. Kennedy Jr.
Editor’s Note: A previous version of this story said the ruling was handed down by the Supreme Court of Canada. In fact, it is the Federal Court of Appeal.
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