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| Sara Blake |
After laboratory testing confirmed infection of dead ostriches with H5N1, the Canadian Food Inspection Agency (CFIA) issued a notice to dispose requiring the farm to dispose of all its ostriches by a prescribed deadline. The CFIA also refused the farm’s request to exempt at least some of its surviving ostrich flock from destruction.
The farm’s application for judicial review and appeals were dismissed. The Federal Court of Appeal said, “While we have considerable sympathy for them, the law we are bound to apply inevitably leads to the conclusion that this appeal must be dismissed.”
The orders were made pursuant to s. 48 of the Health of Animals Act (the Act) and the CFIA’s stamping-out policy, which was operationalized through its highly pathogenic avian influenza event response plan (the policies).
The courts reminded us that “it is not the role of this Court to set, vary, or grant exemptions from governmental policy.” I note that this is not new law.
The Act authorizes the disposal of diseased animals, as well as animals that had contact with diseased animals. The only precondition to an exercise of discretion is a finding of disease. Laboratory tests on the dead ostriches confirmed that the cause of death was H5N1. The remainder of the flock had been in contact with the dead ostriches.
The Act grants the CFIA discretion to order treatment of the surviving ostriches instead of disposal if the CFIA considers that the treatment will be effective in eliminating or preventing the spread of the disease. Whether to order disposal or treatment is a matter of discretion. The CFIA’s disposal policies are based on experience from past outbreaks of avian flu. That experience demonstrates the high risks of transmission to other wild and domesticated birds and some risk of transmission to other animals and to humans. In addition, there are international trade ramifications if diseased flocks are not promptly culled. The most effective way to reduce the risk of transmission of avian influenza is to cull the entire flock.
The farm challenged this binary choice between disposal and treatment, arguing that the Act should provide a third option of “wait and see.” This was a misunderstanding of the nature of statutory discretion: the CFIA has discretion not to order either option. It could choose to do nothing, which, in effect, is the “wait and see” option. But in this case, the risks of that option were not supportable.
The CFIA provided evidence that there is a higher risk of transmission of infection by ostriches than by other birds. Smaller poultry are typically killed by the disease, but infected ostriches can survive without symptoms and continue to infect others.
The farm’s submissions to the court did not dispute the factual evidence. Rather, it focused on the reasonableness of the policies, alleging that they were based on outdated science. They did not dispute the evidence as to the history of the policies, which showed that the CFIA had consistently updated its policies as new scientific information became available. In any event, it is not for the court to resolve scientific disputes.
The farm’s application to CFIA for an exemption was denied. The policies grant the CFIA discretion to exempt a farm’s flock from disposal despite a finding of disease. However, the circumstances did not support the farm’s request. The farm had failed to report the deaths of ostriches. The CFIA received an anonymous tip to its sick-bird call line. On arrival at the farm, the CFIA observed wild birds on a pond in the ostrich enclosure and ostrich carcasses lying dead in the pens or being dragged between pens without proper precautions. These circumstances increased the risk of transmission of the disease within the flock and to wild birds.
The farm filed with the Court of Appeal fresh evidence as to the health status of the remaining flock. Typically, fresh evidence of facts that postdate the decision at issue is not admissible because judicial review is conducted on the record that was before the decision-maker. The court refused to consider it.
None of this is new law. The application appears to have been motivated by emotion rather than legal research and analysis. It was doomed to fail from the start.
Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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