Law professor would be ‘surprised’ if High Court takes case of B.C. ostrich farm

A law professor at the University of Ottawa says he would be surprised if the Supreme Court of Canada decides to hear the case of a British Columbia farm fighting to save its ostriches from being culled by the Canadian Food Inspection Agency.

Paul Daly, the university’s research chair in administrative law and governance, said it has been “misreported” that the High Court granted a stay on the cull.

Daly said only one of the court’s judges granted an interim stay of the cull order for the flock at Universal Ostrich Farms in southeastern B.C. in order to give all nine members a chance to consider the farm’s bid to have the cull stayed and the case heard.

If the High Court declines to grant the farm’s application for leave to appeal, Daly said the bid to stay the cull would be rendered moot and it would be “the end of the line legally” for the ostriches.

The CFIA said in a statement last week that the flock numbered between 300 and 330 ostriches, while the farm has said the number is closer to 400.

Both the farm and the CFIA have filed documents with the Supreme Court, which ordered last week that the birds stay in the custody of the agency pending the court’s decisions.

The latest statement from the Canadian Food Inspection Agency issued Wednesday said its inspectors were feeding and watering the animals, which were showing “no signs of agitation or stress related” to their presence.

The agency said it was aware of what it described as “online campaigns encouraging supporters of the ostrich farm to deliberately tie up the agency’s phone lines and resources by falsely requesting inspection services.”

It said the disruptions risked interfering with its ability to respond to legitimate calls and “could delay critical services that protect Canadians’ food safety, plant health and animal health.”

The latest CFIA statement and legal filings come after police escorted agency staff on to the farm near Edgewood, B.C., in order to serve a warrant and take control of the ostriches’ enclosure on Sept. 22.

The agency had requested officers to accompany its staff in order to “keep the peace and enforce the law while their agents conduct their lawful authority to search the property,” the RCMP said in a statement last week.

The Mounties also said they were investigating threats of violence aimed at businesses involved or thought to be involved in the CFIA operation.

The farm’s co-owner, Karen Espersen, was arrested last week alongside her daughter, Katie Pasitney, after the pair refused to leave the ostrich enclosure. They were soon allowed to return home, but they are barred from re-entering the birds’ pen.

In its submissions to the High Court, the farm said there’s currently no legal right or avenue to “compel” an administrative agency to reassess a decision “when emergencies evolve,” an issue it claims the lower courts “left unsettled.”

Daly said it’s difficult to be sure if the court will decide to hear a case, but the legal issues at play in the farm’s case that have already come before the Federal Court and Federal Court of Appeal are “not particularly novel or complicated.”

He said the public outcry on social media about the cull won’t likely be factored into the court’s decision, though it has raised the profile of the case.

“I don’t think the fact that there’s a social media uproar is going to influence the Supreme Court one way or the other,” he said. “I think it’s more likely that the Supreme Court ignores the public outcry and just takes a dispassionate view of the merits of the application.”

Universal Ostrich Farms said in its submissions that it was not asking the courts to “second guess science,” but settle a recurring problem in administrative law where “emergency powers are implemented through general policies while facts evolve.”

The CFIA said in its filings that the farm’s application to the High Court should be dismissed with costs awarded to the government because it “largely repeats or reformulates arguments” that were rejected by the Federal Court of Appeal.

It said the “essence” of the farm’s case is to challenge the merits of the agency’s avian flu response policy “as it applies to their ostriches, a highly specific issue that is not of public importance.”

The agency’s filings say the farm is trying to secure a third opportunity to litigate its disagreement with the policy decision about the cull.

“However, that (the farm) disagrees with CFIA, or disbelieves judicial findings of fact about risks to public health, animal health, and trade, or would prefer a different outcome, does not provide a basis for this court’s intervention on appeal.”

Daly said he thinks the court will make a “very quick decision” on whether to hear the case.

This report by The Canadian Press was first published Oct. 1, 2025.

Darryl Greer, The Canadian Press