IMPORTANT OSTRICH UPDATE
The Justice Department lawyers supporting the Canadian Food Inspection Agency have filed an appeal to reverse the injunction. They REALLY want to kill these 390+ healthy ostriches.
Canadian Government Appeals Ostrich Injunction
Status Update on the Ostriches - Interview with Kari Simpson
https://rumble.com/v6k5jjm-canadian-government-appeals-ostrich-injunction.html
For previous articles regarding this issue, CLICK HERE and HERE.
PLEASE READ THE IMPORTANT UPDATES.
Be sure to take the time to understand item [D] below!!
On Monday, February 10, 2025 lawyers from the Canadian Justice department filed an appeal to overturn the stay of execution in order to facilitate the killing of 390+ healthy ostriches.
THE GROUNDS OF APPEAL are as follows:
1. The Motions Judge erred in law and in principle, and/or seriously misapprehended the facts, in:
a. finding that irreparable harm “in the form of the closure of its 25-year old business and the loss of the [Respondent’s] decades-long efforts in cultivating a unique herd of ostriches” would flow to the Respondent if an injunction were not granted, notwithstanding that the injunction motion was only in respect of the Notice and not in respect of the Minister’s authority to dispose of the ostriches pursuant to subsection 48(1) of the Health of Animals Act if the Respondent did not do so; and
b. finding that the balance of convenience favoured granting the injunction, including by:
i. erroneously concluding that not issuing the injunction would render the underlying application moot;
ii. finding that the Appellant has “a range of options under the HAA [Health of Animal Act] to address its concerns regarding public safety”, when there were no options other than disposal of the ostriches; and
iii. failing to account for or seriously misapprehending the facts concerning public interest factors that overwhelmingly favoured not issuing an injunction.
2. To the extent the Motions Judge made an order enjoining the Minister from disposing of Universal’s ostriches under subsection 48(1) of the Health of Animals Act, or pursuant to the Minister’s authority under other sections of that Act, the Motions Judge erred in law and in principle, including by exceeding his jurisdiction. On February 7, 2025, the Appellant filed a motion in Federal Court file T-294-25, seeking clarification as to the scope of the Federal Court’s January 31, 2025 Order, including whether the Order was intended to enjoin the Minister from disposing of Universal’s ostriches under subsection 48(1) of the Health of Animals Act.
3. Such further and other grounds as counsel may advise and this Honourable Court may permit.
Let’s destroy their arguments one item at a time:
[A] 1(a) Irreparable harm
[B] 1(b)(i) Moot
[C] 1(b)(ii) Range of options
[D] 1(b)(iii) Public interest factors [THIS IS THE REAL REASON]
[E] 2 Jurisdiction
[A]
1(a) Irreparable harm
The text of the appeal states the following:
1. The Motions Judge erred in law and in principle, and/or seriously misapprehended the facts, in:
a. finding that irreparable harm “in the form of the closure of its 25-year old business and the loss of the [Respondent’s] decades-long efforts in cultivating a unique herd of ostriches” would flow to the Respondent if an injunction were not granted, notwithstanding that the injunction motion was only in respect of the Notice and not in respect of the Minister’s authority to dispose of the ostriches pursuant to subsection 48(1) of the Health of Animals Act if the Respondent did not do so;
This attempted word sorcery is astonishingly ridiculous.
The Canadian Food Inspection Agency has ordered the “disposal” of the entire flock of healthy ostriches and yet they somehow have the audacity to claim that this would not cause irreparable harm. If the injunction had not been granted, the ostriches would have already been killed.
They are trying to split hairs by claiming that the injunction that was granted on January 31, 2025 only relieved the the owners of the Universal Ostrich Farm from killing their own ostriches. They seem to be claiming that the injunction did not apply to the Canadian Food Inspection Agency (CFIA) and that if the CFIA kills the ostriches, then the owners would not suffer any financial or emotional harm.
Since 2020, Universal Ostrich Farm has been entirely dedicated to the production of antibodies with its ostrich herd. It is not a commercial poultry facility and it does not produce any ostrich meat or eggs for human consumption.
A term of the quarantine order prohibits Universal Ostrich Farm from testing or treating the ostriches. However, based on expert opinions obtained, it is highly likely the ostriches have developed natural immunity, and it is extremely unlikely that they would be shedding the virus to each other, or people, birds, and other animals. In fact, the opinion suggests it is safer to keep the ostriches that have developed natural immunity, rather than killing them and bringing in new ostriches that do not have natural immunity.
The last ostrich death was on January 15, 2025. Nearly a month has passed without a death. There are approximately 390 ostriches that are now healthy, but the December decision still mandates that they be killed.
If the cost of purchasibng an ostrich is estimated at $5,000, the financial harm alone would be approximately $2 million dollars.
The loss of genetic diversity and research potential would harm society as a whole.
The emotional trauma that would be inflicted upon the owners by the killing of 390+ treasured ostriches would be immeasurable.
[B]
1(b)(i) Moot
1. The Motions Judge erred in law and in principle, and/or seriously misapprehended the facts, in:
b. finding that the balance of convenience favoured granting the injunction, including by:
i. erroneously concluding that not issuing the injunction would render the underlying application moot;
This word salad is absolutely absurd.
If the injunction had not been issued, and the ostriches had been “disposed” of (killed), then clearly the underlying application to grant a stay of execution would have been rendered moot - the ostriches would be dead.
[C]
1(b)(ii) Range of options
The text of the appeal states the following:
1. The Motions Judge erred in law and in principle, and/or seriously misapprehended the facts, in:
b. finding that the balance of convenience favoured granting the injunction, including by:
ii. finding that the Appellant has “a range of options under the HAA [Health of Animal Act] to address its concerns regarding public safety”, when there were no options other than disposal of the ostriches;
THE CANADIAN GOVERNMENT’S CLAIM THAT “THERE WERE NO OTHER OPTIONS OTHER THAN DISPOSAL OF THE OSTRICHES” IS CLEARLY UNTRUE.
I encourage the Honourable Justice Battista to point out to Counsel for the Appellant (Aileen Jones and Paul Saunders) that Sections 26, 27.6(1)(a) and 48(2) of the 1990 Health of Animals Act CLEARLY SHOW THAT THERE ARE OPTIONS OTHER THAN KILLING THE 390+ HEALTHY OSTRICHES.
Please review the following sections of the 1990 Health of Animals Act to see that there are clearly options other than killing the ostriches:
[OPTION 1]
Declaration that place no longer infected
26 A place, or any part of a place, that has been constituted to be an infected place by the delivery of a declaration under section 22 or 23 ceases to be an infected place when an inspector or officer declares in writing that
(a) the disease or toxic substance described in the declaration
(i) does not exist in, or will not spread from, the place or the part of the place, or
(ii) is not injurious to the health of persons or animals;
[OPTION 2]
Treatment
27.6 (1) The Minister may, in respect of a designated animal or thing that is or has been in a primary or secondary control zone,
(a) treat that animal or thing or require its owner or the person having the possession, care or control of it to treat it or to have it treated if the Minister considers that the treatment will be effective in eliminating the disease or toxic substance or preventing its spread;
[OPTION 3]
48 (2) The Minister may treat any animal or thing described in subsection (1), or require its owner or the person having the possession, care or control of it to treat it or to have it treated, where the Minister considers that the treatment will be effective in eliminating or preventing the spread of the disease or toxic substance.
https://www.canlii.org/en/ca/laws/stat/sc-1990-c-21/latest/sc-1990-c-21.html
I believe that this is the real reason behind this debacle:
[D]
1(b)(iii) Public interest factors
The text of the appeal states the following:
1. The Motions Judge erred in law and in principle, and/or seriously misapprehended the facts, in:
b. finding that the balance of convenience favoured granting the injunction, including by:
iii. failing to account for or seriously misapprehending the facts concerning public interest factors that overwhelmingly favoured not issuing an injunction.
The lawyers from Canada’s Justice Department are INaccurately supporting a policy of “stamping out” (killing) healthy ostriches that:
Does not legally apply to ostriches (ostriches are not poultry)
Will not effect Canada’s status as an Avian Influenza zone according to World Organisation For Animal Health (WOAH) guidelines, but the Justice Department lawyers are behaving as if it will impact Canada’s status.
What the heck are “public interest factors”?
The Canadian government is prioritizing international trade issues over the lives of healthy ostriches.
(page 5)
If Canada does not follow the stamping out policy, it risks adverse impacts on producers and Canada’s trade relationships, including that trading partners could stop importing poultry and egg trade from Canada, not just from a particular zone or province. (page 5)
(page 42)
Canadian Food Inspection Agency ‘s (CFIA’s) response strategy to an outbreak of Highly Pathogenic Avian Influenza (HPAI) in poultry is to eradicate detected disease and re-establish Canada’s disease-free status as quickly as possible. This is referred to by CFIA and others as a “stamping out” strategy or policy. Stamping out includes ensuring that poultry flocks infected with or exposed to HPAI on an infected premises are humanely destroyed.
The Stamping out policy is applied for all detections of AI subtype H5 in domestic poultry, regardless of within flock mortality and evidence of clinical symptoms. This includes situations where birds appear healthy. The stamping out policy mitigates the risk of further spread of the virus, opportunity for virus mutation and risk of transmission to humans.
CFIA’s implementation of stamping out aligns with WOAH’s standards. Without stamping out, a country cannot be considered free from HPAI until at least 12 months from an infection in poultry, as opposed 28 days where stamping out is implemented.
Attached to my affidavit as Exhibit A is an excerpt from the Terrestrial Animal Health Code, Chapter 10.4, “Infection with High Pathogenicity Avian Influenza Viruses”, which refers to stamping out and its impacts on a country’s disease status.
(page 73)
Avian Influenza also has potential to create far-reaching economic harm. In addition to impacts on farmers of an outbreak of AI in their own flocks, loss of “disease-free” status by not applying a stamping out policy (including in this case) could have adverse ramifications for Canada’s poultry industry as a whole.
According to the Poultry - Meat Cuts Manual, ostriches are not included in the definition of “poultry.”
Meat cut nomenclature and description
1. Poultry: is meat derived from dressed carcasses of turkey, duck, goose, guinea fowl or birds of the species Gallus domesticus as defined by the Safe Food for Canadians Regulations.
According to the World Organisation for Animal Health (WOAH), the ostriches at Universal Ostrich Farm are NOT included in the WOAH definition of “poultry.”
WOAH GLOSSARY:
POULTRY means all birds reared or kept in captivity for the production of any commercial animal products or for breeding for this purpose, fighting cocks used for any purpose, and all birds used for restocking supplies of game or for breeding for this purpose, until they are released from captivity.
Birds that are kept in a single household, the products of which are used within the same household exclusively, are not considered poultry, provided that they have no direct or indirect contact with poultry or poultry facilities.
Birds that are kept in captivity for other reasons, including those that are kept for shows, racing, exhibitions, zoological collections and competitions, and for breeding or selling for these purposes, as well as pet birds, are not considered poultry, provided that they have no direct or indirect contact with poultry or poultry facilities.
https://www.woah.org/fileadmin/Home/eng/Health_standards/tahc/current/glossaire.pdf
This situation does not trigger the WOAH “stamping out” policy.
Article 10.4.1.
General provisions
A notification of infection of birds other than poultry, including wild birds, with influenza A viruses of high pathogenicity, or of infection of domestic or captive wild birds with low pathogenicity avian influenza viruses does not affect the high pathogenicity avian influenza status of the country or zone.
Since ostriches do not have a 14 day incubation period, the section below clearly does not apply in this situation
Article 10.4.6.
Recovery of free status
If infection with high pathogenicity avian influenza virus has occurred in poultry in a previously free country or zone, the free status may be regained after a minimum period of 28 days (i.e. two flock-level incubation periods) after a stamping-out policy has been completed (i.e. after the disinfection of the last affected establishment), provided that surveillance in accordance with Articles 10.4.26. to 10.4.30., in particular point 3 of Article 10.4.28., has been carried out during that period and has demonstrated the absence of infection.
January 10, 2025
REJECTION OF REQUEST FOR EXEMPTION
It is critical that, in honouring requests for exemptions from depopulation, we at Canada Food Inspection Agency (CFIA) remain aligned with our World Organisation for Animal Health (WOAH) obligations to Canada’s stamping-out policy with regards to the detection of Highly Pathogenic Avian Influenza (HPAI). We take these requests seriously and give each request that meets our initial screening criteria due consideration. Conclusions reached in reviewing these applications are final and will not be re-evaluated.
WOAH considers the genus Struthio spp. (Ostrich) as “poultry” in their definition of poultry and they are not exempt from a stamping-out policy. [IS THIS TRUE OR FALSE??]
This stamping-out policy reflects the risks posed by HPAI infected poultry flocks to humans, domestic animals, and wildlife. As part of the stamping-out policy, the CFIA does not consider individual bird test results when evaluating the epidemiological unit on an HPAI infected premises. In order for Canada to mitigate the risks posed by HPAI infected poultry, maintain its international obligations and the expectation of our trading partners, all birds within the HPAI infected epidemiological unit of a non-commercial poultry infected premises must be destroyed and appropriately disposed.
After reviewing all of the information provided, including, but not limited to, email communications from Universal Ostrich Inc. and Yasuhiro Tsukamoto, as well as Struthio Biosciences Inc. business plans, the request for an exemption to depopulation based on rare and valuable poultry genetics is denied.
This decision is final and is not subject to appeal.
A draft plan for the destruction and disposal of all birds and things listed on the 4202 can be provided to your case officer for subsequent CFIA review and approval. We appreciate that this is a difficult decision, and should you need support regarding a plan for destruction and /or disposal please let your case officer know. We have also provided the link for the AgSafe mental health website. They have valuable resources that you may find helpful.
Troy Bourque B.Sc., D.V.M. Planning Chief, Western HPAI Response
Cortnie Fotheringham, Incident Commander, Western HPAI Response
[E]
2 Jurisdiction
The text of the appeal states the following:
2. To the extent the Motions Judge made an order enjoining the Minister from disposing of Universal’s ostriches under subsection 48(1) of the Health of Animals Act, or pursuant to the Minister’s authority under other sections of that Act, the Motions Judge erred in law and in principle, including by exceeding his jurisdiction.
The lawyers for the Canadian Justice Department offered no valid evidence to dispute Justice Battista’s jurisdiction over this matter.
The Canadian Food Inspection Agency certainly accepted a ruling of the Canadian Federal Court when it was decided in their favor.
January 20, 2025
HEALTHY OSTRICHES
January 31, 2025
COURT ORDERED STAY OF EXECUTION
The Respondent (Canadian Food Inspection Agency) has a range of options under the Healthy Animals Act (HAA) to address its concerns regarding public safety;
THIS COURT ORDERS that:
1. The Notice dated December 31, 2024 requiring the Applicant to dispose of the ostriches pursuant to subsection 48(1) of the HAA, is stayed until a decision is rendered in the underlying application for judicial review;
February 7, 2025
GOVERNMENT MOTION FOR CLARIFICATION AND EXPEDITED HEARING
If Canada does not follow the stamping out policy, it risks adverse impacts on producers and Canada’s trade relationships, including that trading partners could stop importing poultry and egg trade from Canada, not just from a particular zone or province. (page 5)
February 10, 2025
GOVERNMENT APPEAL OF STAY OF EXECUTION
Lawyers for the Justice Department of Canada (Aileen Jones and Paul Saunders) filed an appeal in support of the Canadian Food Inspection Agency (a corporation) hoping to have Justice Battista overturn the stay of execution of 400 healthy ostriches that he declared on January 31, 2025.
THE APPELLANT APPEALS to the Federal Court of Appeal from the order of the Honourable Justice Battista (“Motions Judge”) dated January 31, 2025 (Court File No. T-294-25) (“Order”), by which the Motion Judge granted the Respondent’s motion for an interlocutory injunction staying a notice dated December 31, 2024 requiring the Respondent to dispose of their ostriches by February 1, 2025 pursuant to subsection 48(1) of the Health of Animal Act, SC 1990, c 21 (“Notice”). THE APPELLANT ASKS that this Honourable Court:
(a) allow the appeal and set aside the Order;
Counsel for the Appellant
Attorney General of Canada
Department of Justice
British Columbia Region
National Litigation Sector
900 – 840 Howe Street
Vancouver, BC V6Z 2S9
Counsel for the Appellant
Aileen Jones can be reached at:
Phone: 604-666-6671
Fax: 604-666-6258
Email: aileen.jones@justice.gc.ca
https://www.goc411.ca/en/93252/Aileen-Jones
Counsel for the Appellant
Paul Saunders can be reached at:
Phone: 604-362-5137
Fax: 604-666-2639
Email: paul.saunders@justice.gc.ca
Business/Regulatory Law, Litigation Services
https://www.canadianlawlist.com/listingdetail/contact/paul-saunders-676132/
James Roguski
310-619-3055
JamesRoguski.substack.com/archive
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James thank you so much for your update. This whole situation is insane. I pray that the Ostrich's get to live a long life and that the corrupt powers that be are dealt the necessary death blow.
Personally I would not comply! No culling of my birds and no trespassing on my property!!!!!!!!!!!