Staying the Ostrich Cull

I spoke to a journalist from the Canadian Press today about Universal Ostrich Farms and the ostriches that are destined to be culled subsequent to a H5N1 outbreak (albeit one that doesn’t seem to have affected any surviving members of the herd). Readers will recall my post on the legal issues in the case.

The headline — which I did not write! — is that an “expert”/”law professor” would be “surprised” if the Supreme Court of Canada hears the farm’s appeal to the Supreme Court of Canada.

Now, it is important to point out that the real expert here is former law professor Gerald Heckman, now the Honourable Justice Gerald Heckman of the Federal Court of Appeal, who refused the farm’s request for a stay of the court’s decision: Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 164. As Heckman JA observed, the major issue of principle in the case — whether Vavilov applies to policies — was resolved in the farm’s favour, but made no difference to the ultimate outcome, making it unlikely that the Supreme Court would hear an appeal.

There was some breathless reporting last week about the Supreme Court halting the cull by issuing a stay. This may be accurate, speaking very broadly but a cursory review of the docket on the Supreme Court’s website (file 41992) reveals that this is not quite the case. Here is what Justice O’Bonsawin actually decided:

Decision on the motion for a stay of execution, Ob, UPON APPLICATION of the applicant for an order staying the execution and enforcement of the Canadian Food Inspection Agency’s (“CFIA”) December 31, 2024 Notice to Dispose and any steps under CFIA’s stamping-out policy, until the application for leave to appeal is dismissed or, if leave to appeal is granted, until the appeal is disposed of.

AND THE MATERIAL FILED having been read;

IT IS HEREBY ORDERED THAT:

The motion for a stay of proceedings is referred to the Court under rule 51(2)(d) of the Rules of the Supreme Court of Canada and the application for leave to appeal will be dealt with on an expedited basis.

An interim-interim stay of the enforcement of the Notice to Dispose dated December 31, 2024 is granted pending the decision on this motion and the application for leave to appeal.

The respondent shall maintain custody of the birds that are subject to the Notice to Dispose and the applicant shall not interfere with the respondent’s custody of the birds pending the decision on this motion and the application for leave to appeal.

The schedule for serving and filing the material in the above-mentioned file is set as follows:
• The respondent shall serve and file any response to the application for leave to appeal on or before October 3, 2025.

• The applicant shall serve and file the reply, if any, no later than two (2) days following the service of the response.

Judgment accordingly

So, in fact, Justice O’Bonsawin only granted an interim stay, until such time as the Supreme Court has the opportunity to consider the motion. She did not consider whether the farm meets the threshold for a stay and thus threw no doubt on the correctness of Heckman JA’s analysis.

Now, as a practical matter, given the timelines imposed, the Supreme Court will have everything it needs to make a decision on the application for leave to appeal by Monday morning and could dispose of matters as early as next week. If it does decide to hear the case (never say never, and notwithstanding the headlines, please don’t place any money based on my prognostications about what the judges will do), then the motion for a stay will surely be granted, and if it decides not to hear it, the motion for a stay will become moot.

This case has provoked strong reactions, understandably so: nobody wants to see animals culled, especially ones that seem to be in good health. That said, in my view, the legal issues involved are relatively straightforward (though that is easy for me to say, as unlike Heckman JA and his colleagues, I bear no burden of judgment).

Note too, in terms of having a full picture of the available avenues of redress, the Supreme Court’s might not be the last word here, as the farm can conceivably make fresh applications to ask the decision-makers to reconsider their positions, as the Federal Court of Appeal suggested in its decision on the merits: Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 147, at para. 30. Perhaps there will be a happy ending after all.

UPDATE (October 3): In fact, both parties got their materials into the Supreme Court ahead of the deadlines set by Justice O’Bonsawin: the Agency responded on September 25 and the farm made its reply on September 29. The Supreme Court could make a decision very soon: decisions on leave applications are made on Thursdays, and it is possible that a decision could be made next Thursday (the 9th) though perhaps more realistically the following Thursday (the 16th).

This content has been updated on October 3, 2025 at 13:47.