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JR - SOR - Policy. Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency)
In Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from a Federal Court judgment dismissing "an application for judicial review of two related decisions of the respondent, the Canadian Food Inspection Agency (the CFIA)" in a high-media case involving the cull of a flock of farmed ostriches.
Here the court considered the application of JR 'reasonableness review' to policy decisions (as opposed to tribunal decisions), examining Auer v Auer (SCC, 2024) on the related issue of regulation-making:[60] In Auer, the Supreme Court of Canada determined that the reasonableness standard of review applies to the review of regulations adopted under a statute. In assessing the reasonableness of the regulations at issue, the Supreme Court focused on the relevant contextual factors in that case, namely the constraints contained in the legislation pursuant to which the regulations were promulgated: see Auer at paras. 59–60.
[61] In the decision under appeal, the Federal Court applied the reasoning in Auer by analogy: see FC Decision at para. 75. However, contrary to what the appellant contends, the Federal Court did not limit its analysis of the reasonableness of the Stamping-Out Policy only to consideration of whether that policy bore some connection to the disease control objectives in the Act. Its analysis was broader and included consideration of relevant factual constraints, albeit with appropriate deference and recognition that it is not up to a reviewing court to re-weigh or re-decide factual matters, particularly when the facts are scientific in nature. This is evident at several places in the Federal Court’s reasons.
[62] For example, at paragraphs 75–79, the Federal Court wrote:[75] Although Auer addressed specifically decisions to make subordinate legislation, its reasoning logically extends to policymaking decisions. The key connective tissue is the source of authority: in both contexts, the decision-maker exercises broad, delegated discretionary power to pursue legislative objectives. Vavilov has identified the governing statute, other relevant law, and factual context as the “legal and factual constraints” on every administrative act: Vavilov at paras 105-135. Therefore, whether discretion manifests through formal regulations or through general policy directives, administrative decision-makers must always interpret their enabling provisions purposively, act within statutory boundaries, and demonstrate that their legislative or quasi-legislative actions advance the statutory objectives given the available legal and factual constraints.
[76] Consequently, the core reasonableness review considerations articulated in Auer should also apply to policymaking decisions. The analytical framework should not turn on the formal label of “regulation.” What matters most is the nature of the decision itself. Specifically, whether it creates generally applicable rules on statutory authority to be applied by more frontline decision-makers in the administrative decision-making chain. This description encompasses ministerial directives, Cabinet guidelines, and disease-control policies no less than regulations. Accordingly, the analytical framework in Auer that includes the principles of presumption of validity, purposive interpretation, and prohibition on merits review should also guide courts reviewing any policymaking decision. Ultimately, the inquiry remains whether the decision to adopt the policy instrument is grounded in a rational, purposive interpretation of the enabling statute and respects all relevant procedural, substantive, and contextual limits.
[77] Deference is particularly warranted for policy decisions intended to safeguard animal and public health from high-risk disease. Case law has shown this principle consistently. In Kohl v Canada (Department of Agriculture), [1995] FCJ No. 1076 (FCA) [Kohl], the Federal Court of Appeal described a ministerial order made under section 48 of the Act as a “policy decision obviously not subject to the requirements of the rules of natural justice or procedural fairness,” reviewable solely for abuse or misuse of power: Kohl at para 18.
[78] The teaching from Kohl is clear. Where a policy decision ordering blanket disposal of affected animals and things is made in good faith, reviewing courts should confine their reasonableness analysis to whether the destruction advances the objectives of the Act and whether there is some evidence to support the underlying suspicion. Following Vavilov, the threshold for finding sufficient support today is undoubtedly reasonableness, meaning the question is whether the suspicion is reasonably supported by the evidence and consistent with applicable legal constraints. Substituting a different view of the scientific and operational determinations underlying the policy decision would risk treading on the executive’s policy prerogative: Kohl at paras 20–22.
[79] Entertainment Software, South Shore, Kohl and Auer converge into a single guiding principle: courts serve as guardians of legality, not arbiters of the wisdom of policy. When the legislature explicitly delegates public interest decisions, such as the management of animal and public health, to administrative actors, courts must leave assessment of policy merits, especially the nuanced balancing of scientific, economic, and social factors, to decision-makers tasked by Parliament with those responsibilities. Judicial review of policy decisions should only target compliance with legal and factual constraints, and verification of whether the alleged exercise of technical expertise in formulating the policy decisions has been sufficiently demonstrated.
(emphasis added.) [63] In concluding that the Stamping-Out Policy was not unreasonable due to its adoption of what the appellant alleged was outdated science, the Federal Court also held at paragraphs 166–168:[…] These continuous updates and refinements have persisted through to the current 2022 ERP instrument, which integrates ongoing decision records, regular multidisciplinary reviews, and international expert consultations, including with the U.S. Department of Agriculture’s Animal & Plant Health Inspection Service [APHIS].
[167] Besides refinements to specific policy guides, the CFIA has also consistently explored alternatives to the Stamping-Out Policy itself throughout the years, including vaccination, containment strategies such as “burn out,” and selective culling. The [2013 Notifiable Avian Influenza Hazard-Specific Plans] specifically contemplated a “burning out” option for [low pathogenic avian influenza] strains in remote, non-commercial premises with inadequate resources, though this option was removed from the 2022 ERP due to the greater risks to animal health, public health and the environment caused by the spread of HPAI. In December 2022, the CFIA conducted extensive consultations in response to requests from poultry producers in British Columbia to apply selective killing rather than complete stamping out. These consultations were both internal and external. The Agency weighed the benefits and harms of selective killing, specifically factors such as increased prevalence of HPAI, the immediate loss of some international markets, and a potential increase in resources required in the longer term for surveillance, and delayed depopulation procedures. Ultimately, the CFIA concluded that the Stamping-Out Policy remained the most effective in controlling the spread of highly infectious HPAI to other flocks, wild birds and mammals, including humans, while also maintaining alignment with the internationally accepted approach to HPAI management and control.
[168] All these extensive, iterative, and consultative review and update processes directly address the only question properly before this Court on this point: whether the CFIA has remained responsive to evolving scientific and policy developments, and nonetheless determined, on reasoned grounds and with material factors considered, that continued application of the Stamping-Out Policy properly advances the objectives of the Act. The record before me supports a resounding answer in the affirmative. Whether the Applicant’s experts might weigh scientific data differently, or prefer alternative policy approaches, is irrelevant to the reasonableness review that this Court must conduct here.
(emphasis added.) [64] Thus, the Federal Court assessed whether there was a factual basis before the CFIA to support its suspicion that HPAI might be present in epidemiological units to which the Stamping-Out Policy applies and also considered whether the Stamping-Out Policy advances the policy objectives of the Act. We see no error in this approach and, in any event, for the reasons noted below in our fresh consideration of the Stamping-Out Policy, have also come to the conclusion that the Stamping-Out Policy is reasonable.
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