OTTAWA - A Federal Court of Appeal judge says the cull of about 400 ostriches at a British Columbia farm hit by avian flu must be allowed to proceed, in a ruling that dismisses the farm's bid for a stay of execution.
Justice Gerald Heckman says in Friday's ruling that Universal Ostrich Farms in Edgewood, B.C., also failed to establish any "serious or arguable issue" that needs to be addressed by the Supreme Court of Canada.
He says that while he has sympathy for the farmers, they were given "full and meaningful opportunity" to challenge the lawfulness of the cull ordered by the ´ºÉ«Ö±²¥ Food Inspection Agency and they had not succeeded.
Katie Pasitney, the spokeswoman for Universal Ostrich Farms, says the ruling means an interim stay granted last weekend to give the farm time to make legal submissions "no longer exists."
The ´ºÉ«Ö±²¥ Food Inspection Agency ordered the slaughter on Dec. 31, 2024, during an outbreak of H5N1 avian flu that killed 69 ostriches.
Heckman's ruling says the farm has not established that the harm it will suffer outweighs the harm to the public interest if a stay were granted.
"The CFIA must now be allowed to discharge the mandate conferred on it by Parliament and implement its lawful policy," the ruling says of the cull.
Pasitney, whose mother co-owns the farm, says in a video posted to Facebook that they were "trying to figure out the next steps" while facing an "open cull order."
"They made very clear that the ´ºÉ«Ö±²¥ Food Inspection Agency could continue to plan the execution of all of these animals that are living here, breathing healthy, with heartbeats," she says of the court ruling.
"And when those heartbeats are gone, those heartbeats don't come back."
The farm has been fighting the cull order for months, but lost its case in both Federal Court and the Federal Court of Appeal, and had been seeking another stay to mount a challenge at the Supreme Court of Canada.Â
Heckman's ruling says that while he was satisfied the farm still intends to seek leave to appeal to the Supreme Court by Oct. 3, and that it would potentially suffer irreparable harm without a stay, it had failed to establish reasonably arguable grounds for further appeal.
"Judges don’t have hearts of stone," Heckman says.
"Like all people, we understand the emotional bonds that grow between people and the animals they care for. We recognize the hard work and sacrifice that go into establishing a business and the pride a business owner feels in this achievement. I have sympathy for the appellant’s principals, who are facing difficult circumstances."
The CFIA has said there are ongoing risks posed by the flock and the conditions in which the ostriches are kept, while the farmers argue the birds are healthy and scientifically valuable, having acquired "herd immunity."
The farm's situation has drawn attention from opponents of government overreach and the U.S. administration of President Donald Trump, whose health secretary, Robert F. Kennedy Jr., has called for the birds to be spared and studied.
Supporters of the farm have been camping out at the property, staging music concerts and other events to draw attention to the case, and on Friday, Pasitney called again for supporters to converge.
"We need cameras, and we need bodies, and we ask you to come here in peace and no violence," she says in the video.
Pasitney — who said in a news release issued late Thursday that the farm has "formally petitioned" the minister of agriculture to rescind the cull order — did not immediately respond to a request for an interview.
In denying the stay application, Heckman disregarded affidavits filed by the farm in response to submissions by the CFIA, in line with what he says were court rules.
The CFIA submissions this week included an affidavit by Canada's deputy chief veterinarian saying new analysis had confirmed the ostriches were sickened by a unique and more lethal strain of the avian influenza virus.
Dr. Cathy Furness with the CFIA says in her submission that further investigation of samples taken from the birds revealed that the "novel reassortment" of the virus at the farm had "enhanced the pathogenicity" of the strain.
The strain was "among the most virulent" tested at Canada's ´ºÉ«Ö±²¥ Microbiology Laboratory and even low doses killed mice within a few days, the affidavit says.
But Furness says the CFIA didn't know how likely it was that the ostriches at the farm remain infected, or would become infected.
This report by ´ºÉ«Ö±²¥was first published Sept. 12, 2025.
