The Gravitational Force of Vavilov: Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 147 and Rogers v. Director of Maintenance Enforcement Program, 2025 YKCA 12

Last year, in Auer the Supreme Court of Canada applied the reasonableness standard to judicial review of regulations, settling a vibrant academic debate and appellate split in favour of the Vavilov framework. Two important recent appellate decisions underscore that Vavilov is the general framework for judicial review of administrative action: Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency), 2025 FCA 147 and Rogers v. Director of Maintenance Enforcement Program, 2025 YKCA 12. In both cases, Vavilov’s domain is extended, first to the review of government ‘policy’, second to the review of government inaction (via, as an added bonus, an analysis that is highly consequential in terms of the availability of mandatory orders as remedies for unlawfulness).

Universal Ostrich Farms concerns a high-profile dispute about an ostrich farm in British Columbia. After an outbreak of H5N1 on the farm, the Canadian Food Inspection Agency ordered the slaughter of the entirety of the flock. The farm has fought on all fronts against the cull order and has won support from surprising quarters (see e.g. here). Its court challenges have been unsuccessful heretofore. The Agency, acting in the Minister’s stead, has broad powers to cull animals under the Health of Animals Act, S.C. 1990, c. 21 and has adopted a policy — the Stamping-Out Policy, which provides as its name suggests. H5N1 is a strain of avian flu and the Agency essentially has a zero-tolerance policy, with some case-by-case exemptions for animals who are epidemiologically distinct (see para. 14).

The aspect of the Federal Court of Appeal’s decision that is of interest for present purposes is its treatment of the appellants’ challenge to the Stamping-Out Policy. The court acknowledged that there has been a lack of clarity in the jurisprudence, with some first-instance judges applying a more deferential standard of review when a ‘policy’ is being challenged:

Prior to the decision in Vavilov, the approach to reviewing policy decisions framed reasonableness around whether a decision was made in “bad faith, did not conform with the principles of natural justice, or if reliance was placed upon considerations that are irrelevant or extraneous to the legislative purpose” (Malcolm v. Canada (Fisheries and Oceans), 2014 FCA 130, 460 N.R. 357 at para. 32, leave to appeal to SCC refused, 36012 (20 November 2014), citing Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, 1982 CanLII 24 [Maple Lodge] and Carpenter Fishing Corp. v. Canada (1997), 155 D.L.R. (4th) 572, 1997 CanLII 26668 (F.C.A).)

Neither party contests that Vavilov has overtaken the Maple Lodge categories of unreasonableness. The parties did not refer us to any decision of this or another appellate court that has ruled on this question. We note, however, that the Federal Court has split on the issue of the continued relevance of the Maple Lodge categories: Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard), 2022 FC 588, 48 C.E.L.R. (4th) 122 at para. 240; Saltstream Engineering Ltd. v. Canada (Fisheries, Oceans and Coast Guard), 2022 FC 621 at para. 59, Barry Seafoods NB Inc. v. Canada (Fisheries, Oceans and Coast Guard), 2021 FC 725 at para. 35; South Shore Trading Co. Ltd. v. Canada (Fisheries, Oceans and Coast Guard), 2025 FC 174 [South Shore] at paras. 49–51; Munroe v. Canada (Attorney General), 2021 FC 727 at paras. 40, 43–45; Fortune Dairy Products Limited v. Canada (Attorney General), 2020 FC 540 at para. 105; Prince Edward Island Fishermen’s Association Ltd. v. Canada (Attorney General), 2025 FC 737 at paras. 81–84 (at paras. 47-48).

The court determined that Maple Lodge had to be culled, seeing “no principled reason why the reasonableness review of a discretionary policy decision should not be framed in the manner set out in Vavilov, which asks whether a decision “bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”: Vavilov at para. 99” (at para. 50).

Here, however, the application of Vavilov did not lead to a favourable result for the appellants. To begin with, the overarching legal framework affords “broad discretion … to the Minister or ministerial delegates under section 48″ (at para. 54), the standard for disturbing factual findings on judicial review is “high” (at para. 55; see also at paras. 67-71 on the proposition that the courts are not an “academy of science”) and the bar is again “high” in respect of overturning policy decisions as unreasonable (at para. 56). Given case law to the effect that the Minister may have a “very low risk tolerance” (at paras. 81, 92-93) and that the Minister is not required to permit inspectors to make case-by-case determinations about exemptions (at para. 80), as well as the evidence before the Agency when it established the Stamping-Out Policy (at paras. 91, 94-96), there was no basis for judicial intervention. As the court put it:

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 (at para. 92).

…

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.

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 (at paras. 97-98).

This is probably good news for those who wish to challenge policies (and those faced on judicial review by the argument that they are attempting to interfere with government ‘policy’) notwithstanding the result in this case. As in Auer, an artificially high threshold has been lowered, albeit as the decision in Auer itself demonstrates, where the statutory scheme gives the policy-maker significant scope for the exercise of discretion, it will be relatively difficult to demonstrate unreasonableness.

Rogers concerned a different matter and its significance is best appreciated by starting with the conclusion of the court that it should declare that the failure of the respondent to enact regulations was unreasonable, with the expectation that the respondent would “promptly remedy the unlawfulness” (at para. 114). In substance, this is akin to a mandatory order, but Marchand CJ did not consider it necessary to address the (daunting) criteria for such an order, as it is an order “of last resort” (at para. 113). Here, a declaration was sufficient, because the respondent’s failure to enact regulations was unreasonable (more on that in a moment).

The effect of this conclusion is to decouple the availability of a mandatory order from the criteria previously treated as pre-requisites for issuing a mandatory order (see Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 at 766–769, 1993 CanLII 3004 (C.A.), aff’d 1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100). It is sufficient for the applicant to demonstrate that administrative inaction is unreasonable, with the court then exercising its discretion to choose an appropriate remedy in the circumstances. There have been hints of this in the jurisprudence of the Federal Court of Appeal in cases such as Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55 and D’Errico v. Canada (Attorney General), 2014 FCA 95 (the so-called ‘directed verdict’ cases) but this is the first example I am aware of from outside the federal court system.

I explained in Understanding Administrative Law in the Common Law World (2021), at p. 160 that it is sensible to decouple questions of lawfulness (including unreasonableness) from questions of the availability of a mandatory order:

Some courts have been tempted to make orders of mandamus virtually unobtainable. For instance, the Canadian Federal Court of Appeal laid out a long list of “principal requirements”[1] for the granting of mandamus. This, however, is to push the law too far in the opposite direction from the course it was set on by Chief Justice Coke and Lord Mansfield. A more generous approach is to be preferred: “Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable”.[2] This “reasonable construction” can be understood in determining whether to grant the remedy of mandamus to be influenced by administrative law values.

At issue in Rogers was s. 22(1) of the Maintenance Enforcement Act, R.S.Y. 2002, c. 145. This allows those who are required to pay child and spousal support to retain a minimum income “prescribed by the Commissioner in Executive Council”. But the Commissioner has never “prescribed” a minimum income. The applicant, who owes many hundreds of thousands of dollars in unpaid child and spousal support, fears that when he retires, his statutory benefits would in effect be seized.

The respondent raised a variety of objections, including justiciability. Marchand CJ rejected the argument that the failure to make regulations is non-justiciable, on the basis of jurisprudence demonstrating that “the issue is typically justiciable, at the very least to determine the legal effect of the failure to regulate” (at para. 58). He also noted the UK Supreme Court’s decision in RM (AP) v. The Scottish Ministers, 2012 UKSC 58 and read it as supporting the propositions that “the discretion whether to make such regulations, albeit wide, is not absolute”  and that any such discretion “cannot be exercised in such a way as to frustrate the intent of the legislature” (at para. 60).

Rather, the reasonableness standard must be applied:

Given the Court’s intention that Vavilov be applied broadly to the review of executive regulation-making action, the corollary is that Vavilov must also apply to the review of executive regulation-making inaction. In our view, the courts have a role to play where an executive decision not to enact regulations is alleged to be contrary to the purpose of the enabling statute

…

[A] decision not to carry out a regulatory function called for in legislation must be justified in relation to the enabling statute. Where regulatory inaction undermines (rather than fulfils) the purpose of the legislation and, in the words of RM, frustrates (rather than operationalizes) the will of the legislature, the decision is unreasonable. This is so even if the power is itself discretionary (at paras. 69, 73; see also Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board, 2023 ONCA 544, at paras. 53-54).

On the merits, statutory text and purpose suggested that regulations had to be made: the legislature had used the imperative term “shall”, its purpose of striking a balance between collecting payment and ensuring that payors have a minimum standard of living would be frustrated by regulatory inaction (see especially at para. 84) and its provision for judicial oversight of the collection mechanisms would be rendered meaningless (at para. 95). This was a case “in which the Legislature has used precise and narrow language to delineate that power in detail, signalling a tightly constrained delegation of authority” (at para. 89). The bottom line was that the Commissioner’s inaction had frustrated the achievement of the intent of the statutory scheme:

Ultimately, we see no principled distinction between the present circumstances and those that were before the United Kingdom Supreme Court in RM. The Actwas passed over 20 years ago, and the Commissioner has never prescribed a minimum income. The respondents have not provided any reasonable grounds for the Commissioner’s failure to do so. Clearly, the Commissioner has made a deliberate choice to not prescribe the minimum income required for the Act to function as intended. As such, the Commissioner has thwarted the intention of the Legislature leaving the protections in s. 22 without legal effect. Instead of a clear limit set by regulation by the Commissioner, payors (and recipients) are subject to policy choices made by the Director (at para. 100).

Hence, then, the requirement that the Commissioner promulgate regulations, notwithstanding the political sensitivity of the matter. Once regulatory inaction was held to be unreasonable, it was open to Marchand CJ to choose an appropriate remedy for the unlawfulness created by the Commissioner’s failure to act. This is, therefore, a highly significant case both for extending Vavilov to government inaction (especially in the realm of regulation making, where the executive has typically benefited from significant deference) and for providing another example of the decoupling of mandatory orders from the highly restrictive criteria that have previously been set out.

[1] Apotex Inc v Canada (Attorney General) [1994] 1 FCR 742:

1. There must be a public legal duty to act:
2. The duty must be owed to the applicant:
3. There is a clear right to performance of that duty, in particular:

(a) the applicant has satisfied all conditions precedent giving rise to the duty;

(b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay;

4. Where the duty sought to be enforced is discretionary, the following rules apply:

(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair”, “oppressive” or demonstrate “flagrant impropriety” or “bad faith”;

(b) mandamus is unavailable if the decision-maker’s discretion is characterized as being “unqualified”, “absolute”, “permissive” or “unfettered”;

(c) in the exercise of a “fettered” discretion, the decision-maker must act upon “relevant”, as opposed to “irrelevant”, considerations;

(d) mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and

(e) mandamus is only available when the decision-maker’s discretion is “spent”; i.e., the applicant has a vested right to the performance of the duty.

5. No other adequate remedy is available to the applicant
6. The order sought will be of some practical value or effect
7. The Court in the exercise of its discretion finds no equitable bar to the relief sought
8. On a “balance of convenience” an order in the nature of mandamus should (or should not) issue.

[2] R v Hanley Revising Barrister [1912] 3 KB 518, 529 per Darling J.

This content has been updated on September 11, 2025 at 19:37.