The Federal Court of Appeal has rejected a bid by a British Columbia ostrich farm to prevent the culling of its flock that had been infected with avian flu, in a case that has drawn international attention and protests about government overreach.
But a spokeswoman for Universal Ostrich Farm said they would fight on by seeking another court stay, while encouraging supporters to converge on the farm in Edgewood, B.C., to protect the ostriches.
The court on Thursday denied an appeal by the farm against an earlier Federal Court decision, rejecting an application for judicial review of the planned cull of about 400 birds.
The ruling says the cull was ordered by the Canadian Food Inspection Agency on Dec. 31 last year, 41 minutes after samples from two dead ostriches came back positive for H5N1 avian flu.
The appeal court also rejected an application to bring new evidence in the case.
"In so concluding, we recognize that our decision might lead to the death of over 400 ostriches owned by the appellant, an outcome that would doubtless be very difficult, both financially and emotionally, for the appellant’s principals," the ruling says.
"While we have considerable sympathy for them, the law we are bound to apply inevitably leads to the conclusion that this appeal must be dismissed."
The unanimous ruling by the three-judge panel says the "stamping out" policy of the CFIA, in which infected poultry flocks are killed entirely, is reasonable, and that criteria to apply it had been met in the case of the B.C. farm.
The planned cull has drawn opposition from U.S. officials, including Health Secretary Robert F. Kennedy Jr.
Universal Ostrich spokeswoman Katie Pasitney, whose mother co-owns the farm, called the news “devastating” in a social media post.
Pasitney said the decision meant “that at any moment, the Canadian Food Inspection Agency could come and kill our healthy ostriches.”
Pasitney said the farm would apply for a stay of the ruling next week, and she appealed for supporters to go to the farm and "sit with animals that need protection."
"Absolutely zero violence. Peaceful only," she added.
She said the farm would open its gates to the public this weekend.
“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."
The farm had sought to provide new evidence in the form of an affidavit by one of the owners about the current health of the flock.
The farm has maintained that the birds are now healthy, pose no threat and are a valuable scientific resource.
But the judges said accepting the affidavit would be "contrary to this court's role on judicial review," and the evidence was "not independent scientific proof."
They cited a "general rule" that in seeking to overturn an administrative decision, only evidence available to the decision-maker at the time was relevant and admissible.
"The appellant is encouraging the court to use the fresh evidence to re-decide the CFIA’s decisions based on what it claims is the situation today. That is not our role. We are only tasked with reviewing the reasonableness of the CFIA’s decisions at the time they were made, which is the essence of the judicial review remedy."
Pasitney spoke on a Facebook livestream shortly after the decision came out, encouraging Canadians to "rise up."
"If you're a farmer, this is your time. Stand with us. Take to your towns. Do a protest. Stand up for your rights," she said.
"Because if you do think that they're not going to come to your door and they're not going to push on their policy — which is very clear, that they have ultimate power, they operate with excessive freedom and they operate with no accountability, they cherry-pick through their policy when it best serves them — you are mistaken."
The ruling says it is not the role of the court to grant exemptions from governmental policy.
"Rather, our sole role is to determine whether the decisions at issue in this appeal were reasonable in accordance with the deferential standard of review set out in the case law of the Supreme Court of Canada, this court, and other Canadian courts," it says.
"Because the stamping-out policy, which underlies the two decisions, the notice to dispose, and the exemption denial, are all reasonable in accordance with that case law, we have unanimously concluded that this appeal cannot succeed."
Sixty-nine of the flock died of highly pathogenic avian flu in December and January.
In a statement in May, the CFIA said Universal Ostrich Farm had not co-operated with requirements including to report the initial cases of illness and deaths and to adhere to quarantine orders.
The ruling says the CFIA was told about the outbreak by an anonymous tipster.
The agency said Universal Ostrich Farm was issued two notices of violations carrying $20,000 in penalties.
The CFIA said in a statement about the ruling that it did not generally provide details of its operations at individual farms "to help protect the privacy of producers."
"Accordingly, specific operational plans and dates will not be shared with the public in advance," it said.
The latest court decision also ordered the farm to pay $7,000 in costs.
In a video posted online, B.C. Independent MLA Jordan Keely said he hoped there was a way for the federal government to find a “way out,” adding that he thinks the birds’ genetics are “truly important.”
“I think now is the time that we’re going to have to see a farm go to the Supreme Court of Canada to fight and keep their healthy birds alive,” he said, encouraging people to write to the federal government and call for change.
“It just seems like farmers are fighting everything. If it’s not Mother Nature and drought, it’s now the government, and I think this is very wrong.”
The case has drawn the attention of the U.S. administration.
Kennedy wrote to the CFIA offering to jointly study the birds, while former TV personality Dr. Mehmet Oz, now the administrator of the U.S. Centers for Medicare and Medicaid Services, said he would be willing to house them at his ranch in Florida.
Alberta Premier Danielle Smith said in July she thought authorities should be looking for a “better way” than a mass cull, and she was "supportive" of the United States partnering with B.C. to do so.
— with files by Nono Shen in Vancouver
This report by The Canadian Press was first published Aug. 21, 2025.
Ashley Joannou, The Canadian Press
