Judge grants temporary reprieve to hundreds of B.C. ostriches facing avian flu cull

A federal judge has granted a temporary reprieve to about 400 ostriches that were facing a deadline on Saturday for them to be killed at a British Columbia farm hit by an outbreak of avian flu.

Justice Michael Battista ruled Friday to stay the cull order imposed by the Canadian Food Inspection Agency while the farm seeks a judicial review of the case.

Battista said in a written decision that going ahead with Saturday’s order before the matter could be further examined “would expose the applicant to irreparable harm.”

A lawyer for Universal Ostrich Farms Inc. had argued in a Friday hearing in Toronto Federal Court that the ostriches should be exempt from the order because their genetics are the subject of an antibody research study, making them rare and valuable.

Michael Carter said his clients — farm co-owners Karen Espersen and Dave Bilinski — had “happy tears” when they learned the news after watching the proceedings virtually from Edgewood, B.C., about 200 kilometres east of Kelowna.

“Next we will be proceeding with the hearing to look at the CFIA’s decision to have the birds culled and whether it was reasonable,” Carter said in a phone call after the decision.

Espersen’s daughter, Katie Pasitney, said everyone involved with the farm was “ecstatic” after learning about Friday’s decision.

“It’s been a lot of sleepless nights, and it’s been a lot of long days, not knowing if we were looking at having to see 35 years of 400 animals get unnecessarily murdered, killed,” she said in a phone interview.

Pasitney said supporters would be gathering on Saturday to celebrate the “huge win,” while respecting a quarantine notice on the farm.

“Ostriches love people. They’re very curious. They’re very interested in people and they love music, so I’m sure everybody is going to see the ostriches all lined up along the road, at the fence, watching what’s going on tomorrow.”

Still, Pasitney said Universal Ostrich knows there is a long road ahead. They had not been informed of a date for a hearing in the judicial review, she added.

The CFIA issued the cull order after avian flu was detected in two dead ostriches Dec. 30 and its lawyer argued Friday that public health concerns outweighed the farm’s position.

The federal agency’s lawyer, Paul Saunders, told the hearing that it required farms to cull entire herds because there was a risk that the virus could incubate, mutate and create new variants, even in healthy animals.

“There is a risk of human transmission. There is a risk of illness and death,” Saunders said.

The farm initially applied for a CFIA exemption for animals with rare genetics, but the federal agency denied their application Jan. 10.

In his ruling, Battista said that allowing the cull to proceed would mean irreparable harm in the form of “the closure of (a) 25-year-old business and the loss of the applicant’s decades-long efforts in cultivating a unique herd of ostriches.”

The disposal order is stayed until a decision in the judicial review.

Battista denied a request to amend the quarantine notice on the farm.

The farm’s ostriches have been the subject of a research project in collaboration with Dr. Yasuhiro Tsukamoto, president of Kyoto Prefectural University in Japan.

The scientist, also known as Dr. Ostrich, has been extracting COVID-19 antibodies from ostrich eggs in B.C., building on his decades of research on the antibodies in ostrich egg yolk that can block infectious diseases.

Tsukamoto has said his research could be applied to avian flu.

Carter had argued that the ostriches’ genetics were irreplaceable and they should be treated and researched.

“They treated the ostriches like chickens in a chicken barn,” Carter said of the CFIA decision that considered the birds poultry.

Court documents show 69 of the 450 ostriches on the farm died between mid-December and Jan. 15 after showing symptoms of avian influenza.

— With files from Brenna Owen in Vancouver

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