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The Federal Court of Appeal heard arguments from a B.C. ostrich farm Tuesday as it sought to protect its herd from a cull ordered due to the avian flu, in a case that has sparked accusations of government overreach from critics in Canada and the U.S.
Justice Mary Gleason said the panel of three judges would reserve its decision to a later date, but will try to do so quickly, noting that the case dates back to December.
Universal Ostrich in Edgewood, B.C., was ordered to cull over 400 birds after highly pathogenic avian flu was detected on the farm last December.
The Canadian Food Inspection Agency (CFIA) ordered the cull as part of a stamping-out policy to deal with the disease, which led to over eight million birds being infected in B.C. alone, with the agency arguing that they pose a risk of spreading the virus, affecting Canada’s food security.
The Federal Court of Appeal reserved its decision on the B.C. ostrich cull case. This comes after Universal Ostrich in Edgewood, B.C., was ordered to cull over 400 birds after highly pathogenesis avian flu was detected on the farm last December.
Universal Ostrich has argued, however, that avian flu hasn’t been detected on the farm in months, and birds should be tested for their ability to resist further infection.
While their cause has captured the attention of supporters in B.C. and around the world — including U.S. Health Secretary Robert F. Kennedy Jr. and TV personality Dr. Mehmet Oz — a Federal Court judge sided with the CFIA after the farm filed a court challenge in May.
On Tuesday, the Federal Court of Appeal in Ottawa heard the farm’s arguments again, having ordered the cull be paused pending the outcome of the one-day hearing.
Universal Ostrich’s lawyer, Umar Sheikh, said the CFIA was being rigid in its application of the stamping-out policy, and the farm’s case demonstrated why inflexible policy could produce unreasonable results.
He said that the cull was ordered less than an hour after only two birds — out of a confirmed 69 deaths — were confirmed to have contracted avian flu, and hundreds of birds showed no sign of infection months later.
“We would ask questions such as why 100 per cent destruction needs to occur based on 0.5 per cent confirmed infection?” he asked.
The owners of Universal Ostrich Farms in Edgewood, B.C., have been fighting an order from the Canadian Food Inspection Agency to cull their flock after it was hit with an avian flu outbreak last year.
Sheikh said the farm was not taking issue with the stamping-out policy itself — but rather, that the decision was made without noting the circumstances of Universal Ostrich.
Aileen Jones, the CFIA’s lawyer, told the court that the reason why only two mortalities were tested before the cull was that the remaining ostriches had already been scavenged on or were in an advanced stage of decomposition.
She had previously said that the agency had found a novel variant of avian flu on the farm, confirmed in multiple experts’ tests, and said Tuesday that the farm was trying to relitigate the stamping-out policy already argued in a lower court.
“The court’s job then is, as a threshold question, [is] to determine whether the stamping-out policy is a reasonable policy,” Jones said.
“That’s a threshold question that the federal court asked and answered in the affirmative, ‘Yes, it’s a reasonable policy.'”
Farm spokesperson thanks RFK Jr.
Katie Pasitney, whose mother, Karen Espersen, co-owns Universal Ostrich, was in court on Tuesday along with a handful of supporters. Some carried signs with “save the ostriches” slogans and wore T-shirts with ostriches on them.
Several shook their heads as the government’s lawyers notified the court they will be seeking $7,000 in costs should the court rule in their favour.
Pasitney says that her farm’s fight to save the ostrich herd is part of a push to bring about policy reform and prevent unjust culls, which she says are negatively affecting Canada’s small farmers.
“We want to test the animals, prove that they’re healthy, work with the Canadian Food Inspection Agency as a recovered flock, see how we can help farms in in the future, so that we don’t need to keep needlessly killing animals,” she previously told Brady Strachan, guest host of CBC’s Radio West.
An embattled B.C. ostrich farm is getting support from south of the border. As Brady Strachan reports, a couple of high-profile officials within the U.S. administration have met with Canadian authorities and asked them to preserve the ostriches for scientific research.
On Tuesday, Pasitney said that the farm was “not backing down,” even if it lost the case.
“This is a fight for all Canadians, a fight for small farmers,” she said.
“We need to restore the eroded trust in organizations like the Canadian Food Inspection Agency and just support our farmers and not attack them.”
She thanked Kennedy Jr., Dr. Oz and billionaire John Catsimatidis, who have all written letters in support of the farm to Prime Minister Mark Carney. Pasitney said U.S. President Donald Trump was also aware of the case.
“I guess we’ll just see where that goes from here because we do know that Dr. Oz and RFK are very passionate about this, just as well as John Catsimatidis.”
Universal Ostrich Farms has said the loss of the herd would put its three-decade operation out of business.
The Federal Court of Appeal previously refused to let the farm perform further diagnostic tests on its birds.
In a ruling in May that allowed the CFIA’s cull to proceed, Federal Court Justice Russel Zinn wrote that while he has “considerable sympathy” for the farmers, he also found that the cull was ordered following proper procedure under the CFIA’s mandate to prevent the spread of avian flu.
