‘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 an uphill battle “with very low odds” to get a hearing to stop the cull of about 400 birds.

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

Macfarlane says 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.”

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.

It has lost in the Federal Court and the Federal Court of Appeal, and on Friday was denied another stay of the order while it prepares to apply for leave to go to the Supreme Court of Canada.

Federal Court of Appeal Judge Gerald Heckman’s ruling 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.