A case that's ruffling some big feathers in the West Kootenays has hatched a strong connection to White Rock.
Lawyer Michael Carter said the outcome of his firm's challenge of a cull order issued by the Canadian Food Inspection Agency (CFIA) to Universal Ostrich Farm could leave quite an impression – one that is potentially precedent-setting when it comes to avian influenza.
"We have to look at this with a bit more attention and develop better policies to address what's happening with the avian influenza outbreak as a whole," said Carter, a partner at Cleveland Doan LLP.
"The precedent-setting nature of it is arguing that CFIA has to look at these issues on a case-by-case basis and also kind of the humanitarian aspect of it."
Carter is lead counsel for Universal Ostrich Farm, located in Edgewood, where an avian flu outbreak led to a Dec. 31 order from the CFIA to destroy the entire remaining flock – nearly 400 additional ostriches – by Feb. 1.
The "stamping-out" policy is not new, and has been applied by the agency many times in recent years, including to some four dozen B.C. chicken flocks last fall. The measure – taken following a confirmed case of the virus – is aimed at preventing the disease from spreading.
At a virtual hearing Jan. 31 before Federal Court Justice Michael Battista, Carter and co-counsel Alyona Kokanova successfully argued for a stay of the order issued to Universal, pending a judicial review of the CFIA decision.
In his ruling, Battista said "at least two" serious questions were demonstrated by the application: was the disposal notice reasonable given CFIA's discretion to require either disposal or vaccination; and was it an incursion upon provincial responsibility under B.C.'s Animal Health Act.
As well, the applicant demonstrated that irreparable harm would result if the injunction was not granted, Battista concluded.
Carter described the last-minute win as fairly unique.
"It's quite rare to get an injunction itself in one of these CFIA-type cases. There might be one or two other ones out there," he explained.
"The fact that we were able to get an injunction in Federal Court, on short notice, stopping CFIA from implementing this cull order, is pretty significant in itself."
The case was also somewhat unusual for Cleveland Doan – online, its six attorneys name strata, estate, construction, family law and civil litigation as among their main focuses. There's no mention of agriculture, and certainly not of ostriches.
Carter, who grew up in White Rock but moved to Chilliwack a couple of years ago, said he has some general background with CFIA, dealing with avian influenza outbreaks, including one active case in Chilliwack.
The Universal file was referred to him by a former classmate who works at an Alberta organization that the ostrich-farm owners had first approached for help.
It landed on Carter's desk just 10 days ahead of the Feb. 1 depopulation deadline. He estimates he and Kokanova both put around 14 hours each day into drafting the 12-page motion that ultimately paused it.
A date for the judicial review has not yet been set, but Carter is hopeful Cleveland Doan's involvement in the case will highlight the firm's versatility in the field, considering there is no shortage of agriculture industry closer to home, including in South Surrey and south Langley.
"There's hopefully opportunity to grow that agricultural law practice here at Cleveland Doan," he said.
"I'm hoping (the injunction victory) just shows that Cleveland Doan is able to take on these cases and obtain results."
As for the upcoming judicial review, Carter said he and Kokanova remain "cautiously optimistic" the court will rule in favour of Universal Ostrich Farm.
