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Agriculture - Health of Animals Act (HAA) (2). Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency)
In Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from a Federal Court judgment dismissing "an application for judicial review of two related decisions of the respondent, the Canadian Food Inspection Agency (the CFIA)" in a high-media case involving the cull of a flock of farmed ostriches, in the context of 'highly pathogenic avian influenza' (HPAI) infections.
Here the court illustrates Health of Animals Act procedures and policy in this infected bird flock situation, concluding with a review of evidence applying to the JR 'reasonableness' issue:[2] The first decision, a Notice to Dispose issued on December 31, 2024, required the appellant to dispose of all the ostriches on its farm by February 1, 2025, after laboratory testing confirmed infection of two dead ostriches with the H5N1 strain of highly pathogenic avian influenza (HPAI). The second decision, an Exemption Denial dated January 10, 2025, denied the appellant’s request to exempt at least some of its ostrich flock from destruction. The two decisions were made under section 48 of the Health of Animals Act, S.C. 1990, c. 21 [the Act] and in accordance with the CFIA’s Stamping-Out Policy, which was operationalized through the CFIA’s Highly Pathogenic Avian Influenza 2022 Event Response Plan (the 2022 ERP).
[3] The appellant has not yet complied with the Notice to Dispose decision because the Federal Court stayed that decision, pending determination of the judicial review application in the Federal Court, and thereafter a single judge of this Court further stayed the decision pending disposition of this appeal in this Court: Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 122 at paras. 2, 12.
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I. Factual and Regulatory Background
[7] The Federal Court’s reasons provide a thorough summary of the relevant factual and regulatory background. We accordingly review only those facts and details of the regulatory background necessary for the disposition of this appeal.
A. Avian influenza and Canada’s response
[8] HPAI is a highly infectious disease caused by a virus that spreads through infected hosts. It continues to be of particular concern to Canadian and international authorities. While HPAI mostly affects wild birds, it does spread, through direct and indirect contact, to domestic birds and sometimes to mammals, including occasionally to humans: FC Decision at para. 16. Canada has experienced numerous HPAI outbreaks since 2004, including the current outbreak of the H5N1 strain of HPAI (HPAI caused by the H5N1 virus), which commenced in 2021: FC Decision at paras. 21–23. HPAI viruses may persist in infected environments for months or even years: FC Decision at para. 16.
[9] The Minister has authority under the Act to manage diseases in animals. Central to this appeal is section 48 of the Act, which reads as follows:"Disposal of affected or contaminated animals and things"
"Mesures de disposition"
"48 (1) The Minister may dispose of an animal or thing, or require its owner or any person having the possession, care or control of it to dispose of it, where the animal or thing"
"48 (1)"" Le ministre peut prendre toute mesure de disposition, notamment de destruction, — ou ordonner à leur propriétaire, ou à la personne qui en a la possession, la responsabilité ou la charge des soins, de le faire — à l’égard des animaux ou choses qui :"
"(a) is, or is suspected of being, affected or contaminated by a disease or toxic substance;
"a)"" soit sont contaminés par une maladie ou une substance toxique, ou soupçonnés de l’être;"
"(b) has been in contact with or in close proximity to another animal or thing that was, or is suspected of having been, affected or contaminated by a disease or toxic substance at the time of contact or close proximity; or"
"b)"" soit ont été en contact avec des animaux ou choses de la catégorie visée à l’alinéa a) ou se sont trouvés dans leur voisinage immédiat;"
"(c) is, or is suspected of being, a vector, the causative agent of a disease or a toxic substance."
"c)"" soit sont des substances toxiques, des vecteurs ou des agents causant des maladies, ou sont soupçonnés d’en être."
"Treatment"
"Traitement"
"(2) The Minister may treat any animal or thing described in subsection (1), or require its owner or the person having the possession, care or control of it to treat it or to have it treated, where the Minister considers that the treatment will be effective in eliminating or preventing the spread of the disease or toxic substance."
"(2)"" Le ministre peut par ailleurs soumettre ces animaux ou choses à un traitement, ou ordonner à ces personnes de le faire ou d’y faire procéder, s’il estime que celui-ci sera efficace dans l’élimination de la maladie ou de la substance toxique ou la prévention de la propagation."
"…"
"[…]" [10] Section 48 of the Act grants the Minister substantial discretion in deciding when disposal is required. The CFIA, as a delegate of the Minister, has exercised that discretion through its Stamping-Out Policy, which requires depopulation of animals that risk transmitting HPAI: FC Decision at para. 96. The CFIA first adopted that policy in 2004, and it is now operationalized through the 2022 ERP, which has been continuously updated by the CFIA since its adoption. The 2022 ERP sets out guidelines based on international standards and the CFIA’s scientific knowledge: FC Decision at paras. 93–95.
[11] Due to the risks associated with HPAI, the CFIA determined that the only viable alternative when there is laboratory detection of HPAI infection is to stamp out the virus by culling all potentially exposed birds susceptible to infection. The Stamping-Out Policy also responds to Canada’s international commitments, and failing to adhere to it would have important negative international trade ramifications for Canada because other nations might refuse to accept exports of some or all Canadian poultry, at least for a time: FC Decision at paras. 95, 98–100.
[12] The 2022 ERP is updated based on lessons learned from past outbreaks in Canada. This case was the first time the CFIA applied the 2022 ERP to an outbreak in ostriches. To be clear, however, the Stamping-Out Policy as conceived applies to any susceptible bird: FC Decision at para. 102. Ostriches are such a bird. HPAI is not as lethal in ostriches, especially older birds, as in other domesticated flocks, like chickens or turkeys, where most will die of an infection. However, according to the CFIA’s evidence, infection in ostriches raises particular risks. Exposed and infected ostriches may show no clinical signs of disease but yet be shedding the virus and act as a reservoir for the further spread of infection to people, livestock, and wildlife. Moreover, ostriches may contribute genetic mutations to avian influenza viruses that increase its adaptability to mammals.
[13] Under the 2022 ERP, the laboratory confirmation of the H5-subtype HPAI in infected premises triggers the application of the Stamping-Out Policy. The CFIA’s inspectors are directed to issue a Notice to Dispose of all the susceptible animals in the same "“epidemiological unit”", a group of animals with the same likelihood of exposure to HPAI: FC Decision at paras. 96–97, 102–104. The 2022 ERP lays out protocols for the disposal of animals as well as for cleaning and disinfection of the premises after disposal. These may include a requirement to remove the soil and other contaminated materials and a period during which lands must remain fallow, with no animals on them: FC Decision at para. 104.
[14] The CFIA, through a specialized Exemption Committee, exercises some case-by-case discretion in considering whether certain exemptions apply. Those exemptions allow animals to be spared despite being on the same farm as the animals designated for depopulation as long as the exempted animals are part of a distinct epidemiological unit and meet certain criteria: FC Decision at paras. 96–97, 105–109.
B. The December 2024 outbreak at the appellant’s farm
[15] The appellant has operated its farm for over 30 years as a family business. A pond at the heart of the premises and the frequent visits to it by wild ducks, sometimes numbering in the hundreds, render the farm particularly vulnerable to virus transmission to and from the ostriches, HPAI infection, and long-term contamination: FC Decision at paras. 16, 24. By early December 2024, the appellant reportedly housed approximately 450 ostriches in outdoor pens at the farm: FC Decision at para. 27.
[16] In February 2020, the appellant’s flock experienced an illness, confirmed at the time through testing to be a bacterial infection, but which the appellant (without any confirmatory testing) now alleges might have been avian influenza: FC Decision at para. 28.
[17] In December 2024, within a week of many wild ducks landing on the premises, numerous ostriches experienced "“flu-like”" symptoms. Around 25 to 30 ostriches died over a three-week period. The appellant did not report these deaths to a CFIA designated veterinary inspector. The currently circulating version of HPAI is a reportable disease under the Reportable Diseases Regulations, SOR/91-2, and subsection 5(1) of the Act requires notification to the nearest veterinary inspector in cases of a suspected reportable disease.
[18] The CFIA intervened on December 28, 2024, following an anonymous tip to its sick bird call line and imposed quarantine measures: FC Decision at paras. 29–30. On December 30, 2024, and in the weeks that followed, the CFIA’s inspectors visited the site and noted various biosecurity risks, including wild bird activity, staff and equipment moving between open pens, and breaches of quarantine protocols, as well as ostrich carcasses laying dead in the pens or being dragged between pens without proper precautions: FC Decision at paras. 31, 256.
[19] On December 31, 2024, the samples collected from two carcasses the previous day came back positive for HPAI, later confirmed on January 3, 2025 as the H5N1 strain of HPAI. Some 41 minutes after the initial positive result, a CFIA inspector issued a Notice to Dispose of all the ostriches, pursuant to section 48 of the Act and in accordance with the 2022 ERP. The deadline for compliance was February 1, 2025: FC Decision at paras. 32–33. The CFIA and the appellant continued to discuss an application for exemption in the days that followed. The CFIA’s Exemption Committee denied that application on January 10, 2025: FC Decision at paras. 34–41.
[20] According to the appellant, the spread of the illness plateaued in mid-January with the last of the 69 confirmed ostrich deaths occurring on January 15, 2025. The appellant has sought to adduce fresh evidence before this Court that it alleges confirms the continued recovery of the flock. In late January, the appellant requested the CFIA undertake additional testing, but this request was denied: FC Decision at paras. 42–43.
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E. Were the impugned decisions reasonable?
[89] We turn next to assessing the ground that is most relevant in this appeal, namely, the reasonableness of the CFIA’s decisions, and conclude that they were all reasonable.
[90] As noted, before this Court, the appellant primarily attacks the Stamping-Out Policy for the CFIA’s alleged failure to consider the particularities of ostriches and its failure to provide for retesting or reconsideration of alternatives after the ostriches allegedly recovered. Neither ground is convincing.
[91] Contrary to what the appellant claims, the CFIA had evidence before it about ostriches prior to promulgating the Stamping-Out Policy. The record supports that, although the CFIA may not have directly consulted with ostrich owners in developing that policy, it possessed evidence demonstrating that ostriches were susceptible to infection and could transmit the infection to other ostriches or various types of birds. This included published scientific research on the susceptibility of ostriches to avian influenza conducted in South Africa, where the appellant’s flock reportedly originated. Susceptibility is the key criterion triggering the application of the Stamping-Out Policy: FC Decision at para. 102. Moreover, the appellant’s situation and that of the ostriches were specifically considered by the CFIA before it issued the Exemption Decision: see FC Decision at paras. 239–240.
[92] The appellant claims the survival rate of ostriches compared to other poultry, such as chickens and turkeys, should have led to a different result in its case. We disagree. Section 48 of the Act does not limit the Minister (or the CFIA, the ministerial delegate) to ordering the destruction of only infected animals. As noted in Hunt, Jerram and Kohl, the Minister may proceed with destruction on the basis of mere suspicion and may make destruction decisions through a general policy. Moreover, the imposition of the Stamping-Out Policy on ostriches is consistent with Canada’s international trade obligations, which is a relevant consideration in developing a policy under section 48 of the Act: Hunt at para. 49; Jerram at 30.
[93] As concerns, more generally, the reasonableness of the Stamping-Out Policy, the Minister and CFIA are afforded very broad discretion under section 48 of the Act, which allows them to require destruction of animals based on mere suspicion of infection. The case law of this Court and the Federal Court, as noted, has recognized the breadth of that discretion and endorsed policies like the Stamping-Out Policy.
[94] Moreover, there was significant evidence before the CFIA, when it adopted the Stamping-Out Policy, about the risks of HPAI to domestic disease control, public health, and Canada’s ability to export poultry to its international trading partners. This evidence amply supports the choice of stamping out as a reasonable response to those risks.
[95] More specifically, the CFIA possessed evidence that:. stamping out effectively controls the spread of HPAI to other sites or species by stopping virus amplification, caused by the multiplication of the virus in infected hosts and its excretion into the environment, thereby reducing opportunities for other susceptible animals to become exposed;
. decontamination, after the animals are removed from the site, also prevents the spread of the virus, which can survive for months in cold and moist environments;
. controlling the spread of HPAI preserves animal resources and reduces impacts on Canadians’ food supply by reducing the number of birds infected by HPAI, which is important because HPAI outbreaks in chickens and turkeys may result in the death of large proportions of exposed flocks and require the culling of hundreds of thousands of birds;
. stamping out is recognized as the international standard for achieving domestic disease control of HPAI. In this regard, Canada is a member of the World Organization for Animal Health (WOAH), a science-based organization recognized by its 183 member states as the global authority on matters of animal health and by the World Trade Organization as the international standard setting organization for animal health and zoonoses (diseases transmissible from animals to humans). One of the WOAH’s roles is to identify the most appropriate strategies and measures for disease prevention and control. The WOAH supports the implementation of a stamping out policy in response to HPAI outbreaks in poultry, including ostriches, and a majority of WOAH members recognize this policy as the international standard;
. stamping out responds to the risks posed by HPAI to public health since transmission of HPAI to humans, though rare, can occur, and close to half of the 900 or so human cases of avian influenza (H5N1) reported in the past few decades have been fatal; and
. stamping out effectively responds to the risks posed by HPAI to Canada’s ability to export poultry to international trading partners. Trade agreements with the United States, Mexico, and the European Union require Canada to adhere to international animal health standards. Canada’s most important trading partners, including the United States, recognize stamping out as the international standard disease response to HPAI. Under WOAH standards, countries who apply a stamping out policy in response to HPAI detections in poultry may regain disease-free status a minimum of 28 days after the stamping-out process is complete. Where such a policy is not implemented, disease-free status may be recognized only when there has been an absence of detection of HPAI in poultry for a minimum of 12 months. Before poultry exports can resume following an HPAI outbreak, importing countries require disease-free status at the level of the entire country or at the level of a province, depending on the importing country. In response to the current HPAI outbreak, Canada has, in compliance with WOAH standards, established HPAI control zones and can export poultry from outside of these control zones to trading partners who recognize Canada’s zoning. Their recognition of zoning is based on their expectation that stamping out will be implemented in control zones according to WOAH standards. Canada’s failure to apply the policy would put at risk recognition of its zoning by trading partners, jeopardize Canada’s access to export markets for its poultry and poultry products and damage Canada’s reputation as a country able to successfully control, contain and eliminate diseases in accordance with its international commitments. [96] In light of this evidence, like the Federal Court, we conclude that the CFIA reasonably chose as its preferred measure the timely destruction of any type of bird that was both susceptible to HPAI and exposed to it: FC Decision at para. 102.
[97] Nor did the Stamping-Out Policy have to provide for additional testing or a more targeted approach to culling. The record put before this Court demonstrates that the CFIA considered but rejected at various points the possibility of a "“burn out”" strategy or more targeted responses to avian flu outbreaks: FC Decision at para. 167. That choice was supported by the risk to international trade and the scientific realities of how avian flu is transmitted, both of which are acceptable considerations under section 48 of the Act: see Jerram at 30; Hunt at paras. 49–51.
[98] In addition, it was reasonable for the Policy to provide for the culling of the entire flock without selective testing and despite the fact that part of the flock would not succumb to the illness. As explained, section 48 of the Act explicitly allows for destruction in the face of a mere suspicion of infection or exposure to suspected infection. The decisions in Jerram, Hunt, and Kohl all recognized this reality. This conclusion is also relevant to the appellant’s emphasis on the fact that only two ostriches were tested. This argument also overlooks the fact that a significant number of ostriches died in the outbreak, in addition to the fact that the biosecurity measures maintained by the appellant on the premises at the time placed all ostriches under the same risk of exposure to HPAI and that, as a result, the positive test result of just one bird subjected the entire flock to destruction without exception. In any event, the number of samples is irrelevant under the 2022 ERP: FC Decision at para. 155.
[99] Given that the Stamping-Out Policy is reasonable, we also find that the Notice to Dispose and Exemption Denial were reasonable. The inspector had to issue the Notice to Dispose once the criteria were met.
[100] From the reasons given and in light of the record, 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. 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. It held as follows:While a significant policy deviation was considered (i.e. to employ selective culling of this HPAI infected non-commercial poultry premises, rather than stamping-out), internal consultation with other branches (ie. Science, International Affairs, Policy and Programs) highlighted the substantial risks in not adhering to current policy, including: the domestic disease control risks, the threat to public health, and the anticipated trade implications given our trading partners expectation that Canada adhere to a stamping-out policy. Maintaining a large population of outdoor birds infected with HPAI would delay Canada’s ability to regain disease freedom status, with a minimum one-year delay from the closure of the last outbreak rather than 28 days associated with a stamping-out policy. Communications between [International Affairs Branch] and the United States Department of Agriculture (USDA) also clearly identified that the USDA has, and would continue to, apply a stamping out approach to the detection of HPAI in ostrich farms. The risk for further HPAI transmission to humans, other domestic livestock, and wildlife, in a large population of HPAI infected outdoor birds that may harbour subclinical infections was notable. (Exemption Committee Decision Record, CFIA Certified Tribunal Record at p. 312). [101] Thus, we find that the Exemption Committee reasonably concluded that the flock did not qualify for exemption under any of the categories in the 2022 ERP and reasonably refused to pursue the alternatives proposed by the appellant.
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