Justice Battista ruled that killing the ostriches would expose the farm’s owners – Karen Espersen and Dave Bilinski of Edgewood, B.C. – to 'irreparable harm.' Ostriches stand near a fence at the Universal Ostrich Farms in Edgewood, B.C., on Jan. 18.Aaron Hemens/The Globe and Mail
A Federal Court justice has given a reprieve to 400 ostriches on a secluded ranch in southeast British Columbia that were ordered killed over fears of the spread of avian flu.
Justice Michael Battista ruled late Friday that more information is needed to determine whether the cull – ordered last month by the Canadian Food Inspection Agency – was reasonable and necessary.
The birds were slated to be destroyed Saturday after a virulent strain of avian flu, known as H5N1, was discovered in the flock late in December.
The virus has been sweeping through poultry farms across B.C., and federal authorities are concerned that it could mutate to infect humans. Millions of chickens, ducks and other poultry have had to be killed after infection was discovered on their farms.
Justice Battista ruled that killing the ostriches would expose the farm’s owners – Karen Espersen and Dave Bilinski of Edgewood, B.C. – to “irreparable harm,” resulting in the closing of their 25-year-old business and the loss of animals they have spent decades fostering.
The justice also questioned whether the CFIA kill order was “reasonable” in this case, and whether it infringed on provincial responsibility.
The CFIA issued the kill order after avian flu was detected in two dead ostriches Dec. 30. The organization’s lawyer argued in a three-hour hearing on Friday that public health concerns outweighed the farm’s position.
Court heard the CFIA’s cull strategy is aimed at eradicating infected populations and re-establishing new ones as fast as possible – what’s known as the “stamping out policy.”
CFIA lawyers noted that a country cannot be considered free of avian flu until at least 12 months from an infection in poultry, as opposed to 28 days where stamping out is implemented
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,” Mr. Saunders said.
In their petition, the ranchers noted that ostriches have among the most robust and versatile immune systems of any animal on the planet, and that by mid-January, their herd had recovered from the illness, with the last death occurring on Jan. 15.
They noted that the World Organization for Animal Health – the international standard-setting organization for the safe trade in animals and animal products – allows member countries, including Canada, to use vaccination to fight against avian flu.
The ranchers included the opinion of Steven Pelech, a professor of medicine at the University of British Columbia.
Dr. Pelech, who specializes in neurology, wrote that it was “highly unlikely that the animals were transmitting the illness to humans, wild birds or other animals,” given their apparent natural immunity. He argued that they represent an “important potential research model,” given their long lifespan and the banking of their eggs.
The 24-hectare ranch is located 10 kilometres outside Edgewood. Fauquier, the nearest town, is accessible by a ferry across Arrow Lake. Vernon, the nearest city is a two-hour drive west. Since the COVID pandemic shuttered their meat and oils business, Ms. Espersen and Mr. Bilinski have been producing and extracting antibodies from ostrich eggs for scientific research.
With a report from The Canadian Press