Judge freezes order to kill B.C. ostrich herd over avian flu pending further review

UPDATE 3 p.m.

A federal judge has granted a temporary reprieve to about 400 ostriches that were facing a deadline on Saturday for them to be killed at a B.C. farm hit by an outbreak of avian flu.

Justice Michael Battista ruled Friday to stay the cull order imposed by the Canadian Food Inspection Agency (CFIA) while the farm seeks a judicial review of the case.

Battista said in a written decision that going ahead with Saturday's order before the matter could be further examined "would expose the applicant to irreparable harm."

A lawyer for Universal Ostrich Farms Inc. had argued in a Friday hearing in Toronto Federal Court that the ostriches should be exempt from the order because their genetics are the subject of an antibody research study, making them rare and valuable.

Michael Carter says his clients — farm co-owners Karen Espersen and Dave Bilinski — had "happy tears" when they learned the news after watching the proceedings virtually from Edgewood, about 200 kilometres east of Kelowna.

“Next we will be proceeding with the hearing to look at the CFIA’s decision to have the birds culled and whether it was reasonable,” Carter said in a phone call after the decision.

The CFIA issued the order after avian flu was detected in two dead ostriches Dec. 30 and its lawyer argued Friday that public health concerns outweighed the farm’s position.

The federal agency’s lawyer, Paul Saunders, told the hearing that it required farms to cull entire herds because there was a risk that the virus could incubate, mutate and create new variants, even in healthy animals.

“There is a risk of human transmission. There is a risk of illness and death,” Saunders said.

The farm initially applied for a CFIA exemption for animals with rare genetics, but the federal agency denied their application Jan. 10.

In his ruling, Battista said that allowing the cull to proceed would mean irreparable harm in the form of "the closure of (a) 25-year-old business and the loss of the applicant’s decades-long efforts in cultivating a unique herd of ostriches."

The disposal order is stayed until a decision in the judicial review.

Battista denied a request to amend the quarantine notice on the farm.

The farm's ostriches have been the subject of a research project in collaboration with Dr. Yasuhiro Tsukamoto, president of Kyoto Prefectural University in Japan.

The scientist, also known as Dr. Ostrich, has been extracting COVID-19 antibodies from ostrich eggs in B.C., building on his decades of research on the antibodies in ostrich egg yolk that can block infectious diseases.

Tsukamoto has said his research could be applied to avian flu.

Carter had argued that the ostriches' genetics were irreplaceable and they should be treated and researched.

“They treated the ostriches like chickens in a chicken barn,” Carter said of the CFIA decision that considered the birds poultry.

Court documents show 69 of the 450 ostriches on the farm died between mid-December and Jan. 15 after showing symptoms of avian influenza.

The Canadian Press

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ORIGINAL 1:30 p.m.

A hearing was held Friday for the Edgewood, B.C. farmers who are seeking a court injunction to delay a Canadian Food Inspection Agency cull order of 400 of their ostriches.

CFIA lawyer Paul Sanders argued that the cull is required to prevent the spread of the highly pathogenic avian influenza (HPIA), which was found in two dead birds on the farm.

“These are diseases have the potential to transmit from animals to humans,” said Saunders.

The CFIA underscored Canada’s obligations to the World Health Organization, which supports the “stamping out” policy to control outbreaks of these kinds to maintain Canada's disease-free status.

The CFIA lawyer added that even if the birds appear healthy, the virus would still pose too much of a risk.

Lawyers representing Universal Ostrich Farms Inc. argued that their flock has recovered, and as a result, could offer valuable scientific information and insights into bird diseases and anti-body recovery.

“The ostrich itself, the robust immune system, the location. It's in remote rural British Columbia. The fact that CFIA, on its website, recognizes vaccination as an option…They're not considering the options and the discretion that they have to use treatment instead of disposing or culling of the herd,” said lawyer Michael Carter at the hearing.

Lawyers representing the CFIA maintained that the vaccinations and antibodies that the farm has been offered by biologists in Japan have not been approved under current Canadian policy.

The court questioned whether the responsibility to carry out the cull should fall on the farmers or the government.

The CFIA had set a deadline of Feb. 1 for the farm to cull and dispose of the birds.

The farm's resistance to the cull order has attracted widespread attention.

"The ostrich story is one of unbelievable bureaucratic overreach," said Suzanne Anton, former B.C. Attorney General and Minister of Justice, in a post on X.

"Kill 400 healthy birds because some Canadian inspectors say so. They’re seeking a remedy in court. Canadian courts have been extraordinarily deferential to authority during the Covid era. This would be a good case to question the science & support citizens instead."

Other demonstrators also displayed their support by attending the meeting.

The judge reserved their decision and said that the ruling would be issued later in the day.

This is an ongoing story and will be updated once a decision has been made.

Keep reading:

Community rallies in support of Edgewood ostrich farmers to protest CFIA cull order