Case information

Administrative law — Judicial review — Standard of review — Discretionary policy decision — When an appellate court states the legal framework for reviewing discretionary administrative decisions “requires reformulation” post-Vavilov, what is the proper approach to reviewing policy-based exercises of statutory discretion? — Can an administrative body maintain that “no discretion” exists under permissive statutory language (“may”) when exercising emergency powers, that results in mandatory outcomes once criteria are met while at the same time operating an exemption process that calls for case-by-case discretionary assessment and how should courts assess allegations of fettering in that structure? — What mechanism exists for reconsidering emergency orders when circumstances transform from active outbreak to extended stability with asserted immunity markers, and what are the legal parameters? — Whether emergency orders that typically operate on compressed timelines, and have arisen hundreds of times in the ongoing HPAI outbreak, fall within the “capable of repetition yet evading review” exception?

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The Federal Court dismissed the applications for judicial review, brought by the applicant, Universal Ostrich Farms Inc., of two related decisions of the respondent, the Canadian Food Inspection Agency (“CFIA”). The first decision, a Notice to Dispose issued on December 31, 2024, required the applicant to dispose of all the ostriches on its farm by February 1, 2025, after laboratory testing confirmed infection of two dead ostriches with the H5N1 strain of highly pathogenic avian influenza. The second decision, an Exemption Denial dated January 10, 2025, denied the applicant’s request to exempt at least some of its ostrich flock from destruction. The two decisions were made under s. 48 of the Health of Animals Act, S.C. 1990, c. 21, and in accordance with the CFIA’s Stamping-Out Policy, which is operationalized through the CFIA’s Highly Pathogenic Avian Influenza 2022 Event Response Plan.

The Notice to Dispose had not been complied with because the Federal Court stayed that decision pending determination of the judicial review application in the Federal Court, and then a single judge of the Federal Court of Appeal stayed the decision pending disposition of the applicant’s appeal before the Federal Court of Appeal.

The Federal Court of Appeal unanimously dismissed the applicant’s motion for new evidence and dismissed the applicant’s appeal, finding that the Stamping-Out Policy, the Notice to Dispose and the Exemption Denial were all reasonable in accordance with the applicable case law.