Feathers vs. Feds: What the Appeal Court Just Heard Could Change Everything
A breakdown of the Universal Ostrich Farms appeal that could shake the foundations of Canada's biosecurity regime
Universal Ostrich Farms (UOF) brought several critical arguments before the Federal Court of Appeal, building a case that not only challenged the lawfulness of CFIA's stamping out policy, but also its reasonableness, procedural fairness, and alignment with science.
Now I am no lawyer but in the last several years I have collected a pretty extensive law library and learned how to use CanLII and here’s how I see each of their core arguments landed…“And that’s the way it is.” CBS Evening News anchor Walter Cronkite
UOF legal counsel, Umar Sheikh, took to the podium first and argued that Section 48 of the Health of Animals Act uses permissive language ("may dispose"), yet CFIA treated it as mandatory once a bird tested positive via PCR … even though only 2 of 69 deceased birds were ever tested, and no live birds, water, or soil were sampled.
The reply emphasized the disconnect between the discretionary nature of the law and the rigid “no discretion” approach CFIA applied through its Emergency Response Plan (ERP). This creates a textbook example of what courts call fettered discretion, and that can be fatal to administrative decisions under the Vavilov standard.
UOF exposed that CFIA’s 2022 ERP, the very document triggering the stamping out policy was built entirely on poultry data and poultry consultations, with no ostrich-specific input despite materially different disease outcomes.
“The ERP was based on considerations and records that had nothing to do with ostriches... no ostrich-specific consultations occurred.”
— UOF Counsel
CFIA’s witness Harchoui, states in his affidavit paragraph 18.
“CFIA also consulted with national poultry groups including the Chicken
Farmers of Canada (CFC), Egg Farmers of Canada (EFC), Canadian Hatchery and
Egg Producers (CHEP), Turkey Farmers of Canada (TFC) and Canadian Poultry and
Egg Processors (CPEPC) on several elements of the policy and procedures in the
updated version of the NAI HSP.”
Although Sheikh didn’t quote paragraph 18 he was clear that the ERP did not consider difference that might present with a 300 pound chicken that can run 75 km/hour to your standard backyard chicken.
This cuts into the intelligibility and transparency of the ERP as a guiding policy. Applying poultry science to ostriches, without scientific justification or ostrich-specific consultation, undermines the legitimacy of the policy.
Refusal to Test Healthy Birds
UOF’s request to test live birds and consult independent experts in January 2025 was denied by CFIA. This refusal, despite birds showing no signs of illness for 6 months was a focal point.
UOF argued that the Federal Court had already acknowledged these facts in paragraphs 43 and 159 of the original decision. They then invoked case law, which allows appellate courts to consider new issues where “failing to do so would risk injustice.” This positions the refusal as a course-of-conduct issue, not just a one-time error.
Expert testimony from CFIA’s own witnesses acknowledged that ostriches are different: they survive, recover, and stop shedding virus … unlike poultry. Despite this, CFIA refused all further testing.
Caught in a Contradiction: CFIA Counsel’s Claim Doesn't Hold
CFIA counsel, Eileen Jones was quick to the defense of CFIA actions, in doing so she may have opened the door to freedom …
In today’s hearing, Ms. Jones stated on record that: “this policy requires testing dead birds up to 10. The evidence in the record is that in this case, only two birds were tested…The reasons why only two mortalities were tested… [was] because the remaining mortalities had been scavenged on by wild animals or were in later stages of decomposition.” She cites a reference to CFIA expert witness Cathy Furness.
But here’s what she didn’t mention:
CFIA was contacted immediately upon the deaths of 2 birds but they waited over 16 hours to attend for testing… thats right, the 2 carcasses that were PCR tested had laid in the field 16-24 hours before CFIA arrived to test…they too would have been decomposing AND scavenged which it doesn’t take a brain surgeon to figure out would render them contaminated.
Several ostriches died AFTER those two carcasses were tested, but CFIA did not test any of them.
CFIA agents were present on-site and personally witnessed at least one hen die.
No samples were taken from that freshly deceased bird , DESPITE every opportunity to do so.
This isn’t a technical oversight. This is a false narrative on the public record … and it contradicts both the facts and the stated goals of CFIA to assess disease risk.
If CFIA truly believed this was a dangerous, contagious virus, why would they ignore fresh carcasses, deny testing, and rely solely on degraded remains?
This strategic omission points to something far more disturbing:
CFIA wasn’t interested in confirming the science. They were committed to a predetermined policy , even when it meant discarding evidence that didn’t fit the narrative.
Let’s stop here for a minute. If memory serves me correctly and it does (usually) … no autopsy was ever performed on any of the 69 birds. The farm vet, while unavailable for on site visit, confirmed the symptoms were identical to those seen during a prior outbreak of Pseudomonas. The UOF was treating the sick with the same protocols used in the past…and some were making full recovery. Even CFIA agents originally said the symptoms were not consistent with avian flu. And yet... an entire cull order was launched off two PCR tests taken from contaminated carcasses, retrieved well after death. Worth noting the first hen to fall ill is alive and well today.
That alone should be the case. But here we are , with hundreds of living birds under threat, while Ottawa debates whether facts matter anymore.
BOTTOM LINE HERE IS WE DO NOT HAVE A CAUSE OF DEATH ON ANY OF THE DECEASED OSTRICHES…with the execption of the 2 that were shot in the night.
Court Has Discretion to Consider New Issues
The appellant cited case law, where the court held that failing to address an issue may risk injustice. Given that months have passed since the last death, and CFIA continues to block testing, refusing to consider these evolving facts would constitute a grave miscarriage of justice.
“Appellate courts have the discretion to consider new issues on appeal where failing to do so would risk injustice.”
WELL THEN …That opens the door to invoking the Canadian Bill of Rights, even though prior counsel chose to abandon this challenge. Mr. Shiehk did mention the Bill of Rights in his submissions today, flagging that it should have been part of the original case and that its absence could lead to injustice.
But here’s the catch:
The court will typically only act on issues not raised earlier if doing otherwise would cause serious unfairness.
That doesn’t guarantee full arguments under the Bill of Rights will be weighed now , but it does preserve the possibility of launching a new judicial review or Charter challenge, especially if the appeal is lost.
While the current legal team could not formally raise new evidence or submissions at this stage, they did raise the matter of fairness and preserved the Bill of Rights issue for potential future litigation … signaling that this fundamental issue is far from closed.
Conflict of Interest of Former Counsel Highlighted
In a powerful closing statement, UOF counsel raised one of the most serious concerns yet: that previous legal counsel had a conflict of interest and failed to defend the case properly. The court was asked to consider this breakdown in representation as part of its duty to prevent injustice.
What was the conflict you ask?: well it seems the very agency that UOF is fighting, CFIA , is also the one responsible for signing the compensation cheque should the birds be slaughtered. Let’s be clear … former counsel didn’t just fail to defend the case properly, he held his own client hostage. He told Universal Ostrich Farm: sign over your future compensation … the blood money from CFIA’s slaughter, to pay my bill, or I walk. But back the bus up… when he attempted to resign, the case management judge herself asked him to stay on. At this point the judge was not aware of the hostage situation but the justice system saw the cracks … and kept taping them over. It should have seen this conflict coming.
When your lawyer’s payday is funded by the destruction of your animals, justice has already left the barn.
How could one not see that these birds were worth more dead than alive to former counsel? If that doesn’t scream conflict, what does?
This raises troubling questions about motive and professional ethics. How vigorously would a lawyer fight to prevent the slaughter when their payday comes after the cull? This potential bias isn’t just theoretical … it taints the entire case history.
My read of the room:
—The court pressed CFIA counsel about the rigidity of the stamping-out policy and lack of individualized consideration.
UOF’s lawyer successfully argued that:
Section 48 is permissive, not mandatory — meaning discretion must be exercised.
The Emergency Response Plan (ERP) was designed for poultry, not ostriches.
Scientific evidence from CFIA’s own experts showed ostriches recover and stop shedding.
The course of conduct was procedurally unfair, including refusal to test live birds or even freshly dead birds.
— CFIA counsel seemed less concerned with the facts on the ground than with defending the sanctity of their policy at all costs. Even when faced with evidence that ostriches are biologically distinct, that symptoms didn’t align with avian flu, and that CFIA refused fresh testing … their priority wasn’t truth, but precedent. They doubled down on stamping out as non-discretionary, brushing aside the science, the suffering, and even the court’s questions about individualized assessments. It was a performance not of public health leadership, but of bureaucratic self-preservation.
— The judges explicitly acknowledged that the ERP lacked ostrich-specific considerations and hinted they might find lack of reasonableness in applying it so rigidly.
— Regarding the conflict of interest: while the judges initially noted it’s not uncommon for lawyers to secure payment from future compensation, they treaded carefully as the argument unfolded. What makes this case exceptional is that the compensation in question would come directly from the CFIA, the very agency UOF is battling in court. And worse, the lawyer’s financial interest only materializes if the farm loses and the birds are killed. That’s not routine, that’s a conflict. The court appeared cautious, likely aware that no charges or disciplinary action have yet been filed against former counsel. But make no mistake: they heard it, they let it stand, and they knew what was implied. They didn’t want to say what everyone was thinking … but they definitely heard it.
SO WHATS AT STAKE:
This is not just a battle over one farm. If CFIA’s interpretation stands, it will:
Set precedent for blind application of policy over evidence.
Cement Canada’s One Health-aligned biosecurity regime.
Strip farmers of any real legal recourse when bureaucracy ignores science.
If the Federal Court of Appeal rules against UOF, it doesn’t just uphold the cull … it effectively cements the legislative overreach embedded in Bill C-5, making that technocratic trap all the more difficult to escape.
Bill C-5 (One Canadian Economy Act) gives sweeping powers to centralized federal authorities, under the pretense of “coherence” and “emergency response coordination.” One of its most dangerous provisions is that it allows federal regulations to override any other conflicting federal law, except for a narrow set of listed Acts.
The Health of Animals Act is not on that exception list.
If UOF loses, the court will have effectively endorsed:
That policy can trump science,
That discretion is meaningless when the bureaucracy says so, and
That federal agencies can enforce mass destruction without due process.
That is exactly the kind of unchecked regulatory power Bill C-5 was designed to entrench across all sectors … agriculture, health, transportation, environment, all under a unified, centralized model of “crisis governance.”
A loss here signals to the courts and Parliament alike that no resistance will be tolerated when a federal agency invokes a “policy” in the name of biosecurity or climate readiness.
In short:
UOF losing this case makes Bill C-5’s power grab appear normal and judicially validated.
What Can You Do?
Share this article with your network. Most Canadians still have no idea this is happening.
Support the farm’s legal battle. Donations are still needed to fund the appeal:
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Contact your MP and MLA. Demand an end to cull-first policies. Demand reforms to the Health of Animals Act.
Stay informed. Follow trusted sources exposing One Health and global biosecurity overreach.
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Speak out. This case is a tipping point — and silence is complicity.
