‘Very low odds’: Top court expert says B.C. ostrich case will struggle to get hearing

An expert on the Supreme Court of Canada says a British Columbia ostrich farm faces “very low odds” for getting a last-ditch hearing to stop the cull of about 400 birds.

Emmett Macfarlane, a political-science professor at the University of Waterloo who has written a book on Canada’s highest court, said Monday that the court focuses on cases where there is a question that needs to be clarified about law, not to re-litigate possible errors in individual situations.

Macfarlane said that in the case of Universal Ostrich Farms in Edgewood, B.C., multiple lower courts have decided not to stop the cull, suggesting there isn’t much legal “controversy” that would require the Supreme Court of Canada to step in.

The farm has been fighting for months to try to stop an order by the Canadian Food Inspection Agency to cull the ostriches over an avian flu outbreak, saying the birds are now healthy and scientifically valuable.

“If there had been a lot of disagreement in courts across the land over the powers of the federal agency that’s involved here, if there had been different rulings in different parts of the country where sometimes farmers have successfully fought these orders, and the courts in Ontario were making conclusions about the law that were different than the courts in B.C. were making, that makes it a much more natural case for the Supreme Court of Canada to clarify the law itself,” he said.

“These are litigants who have lost at the various stages, and the courts aren’t finding that there are any problems with the state of the law, they’re simply applying the law in a way that, unfortunately for the litigants, that they’re stuck with the order.”

It’s not clear that the plight of the ostriches raises a matter of public importance over the state of law in Canada, he said.

“It is definitely an uphill battle with very low odds from that perspective.”

The farm lost in Federal Court and the Federal Court of Appeal, and on Friday was denied another stay of the cull order while it prepares to apply for leave to go to the Supreme Court of Canada, an application that must be made by Oct. 3.

Federal Court of Appeal Judge Gerald Heckman’s ruling that denies the stay says the farm has not established that its final proposed appeal “raises a serious or arguable issue.”

“The appellant was afforded a full and meaningful opportunity to challenge the lawfulness of this policy before this court and the Federal Court. It did not succeed. Both levels of court determined that the CFIA had reasonably exercised its authority in the circumstances of this case and that its policy was lawful,” he said.

The farm has said it still plans to ask the Supreme Court of Canada to stop the cull but without a stay order in place there is nothing to stop the CFIA from going to the farm to begin the cull.

The farm’s lawyer did not immediately respond to a request for comment.

The agency has not said publicly when the cull will happen. The farm has asked supporters to converge on the farm, about 180 kilometres east of Kelowna.

In an email Monday, the CFIA said it received a request from Universal Ostrich Farms for reconsideration of the original disposal order. The agency did not respond to questions about how it intended to respond to that request.

The CFIA has said the outbreak that killed 69 birds in December and January involved a unique and more lethal strain of the avian influenza virus.

In court documents, the agency says it doesn’t know how likely it is that the ostriches at the farm remain infected, or will become infected.

This report by The Canadian Press was first published Sept. 15, 2025