Federal Court of Appeal reserves decision in B.C. ostrich farm's avian flu case
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After hearing arguments on Tuesday in Ottawa, Justice Mary Gleason told the court that the panel of three judges will try to make a decision quickly, noting that the case dates back to December.
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The CFIA ordered Universal Ostrich Farms to cull about 400 birds after 69 ostriches died in December and January.
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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.
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It also fined the farm's owners, Karen Espersen and Dave Bilinski, for failing to report the outbreak and for failing to adhere to quarantine measures.
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The Federal Court denied the farm's application for a judicial review of the CFIA's order, ruling that the agency's decision was reasonable and procedurally fair, and that it is not up to the courts to resolve scientific disputes.
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The courts granted a stay of the CFIA's order to destroy the herd while the case was appealed.
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The farm's lawyer, Umar Sheikh, told the Federal Court of Appeal on Tuesday that the agency ordered all the ostriches to be culled just 41 minutes after receiving the positive test results.
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Sheikh said in his arguments that there is evidence ostriches fare better than other birds in the case of an outbreak, with a lower mortality rate than chickens, for example.
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At issue in the appeal is the CFIA's application of the 'stamping out' policy, which is defined by the World Organization of Animal Health.
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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.
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Sheikh said the CFIA is applying the policy in a one-size-fits-all manner and argued that is not appropriate, pointing out that no ostriches have died on the farm since January and the farmers believe all the birds have recovered.
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The court heard Tuesday that the virus can live in water and soil for months at a time, and that even seemingly healthy ostriches may spread the virus to other animals, including mammals.
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Universal Ostrich Farms has said the loss of the herd would put their three-decade operation out of business.
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The CFIA says the stamping out policy is a critical part of maintaining not only animal and human health, but also Canada's status as a reliable international trading partner.
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