How the son of Russian spies paved the legal path for B.C. ostrich cull

In his battle for Canadian citizenship, Alexander Vavilov got an opportunity denied to the owners of B.C.'s Universal Ostrich Farms on Thursday — a chance to argue his case before Canada's top court.

In the process, the son of Russian spies set a legal threshold for decision-making "reasonableness" that would doom the B.C. birds six years later.

That threshold — and Vavilov's name — are plastered all over the lower court decisions the Supreme Court of Canada refused to reconsider this week, providing justification for the Canadian Food Inspection Agency's (CFIA) decision to order a cull of hundreds of ostriches last December.

Although the top court never gives reasons for dismissing a case, the Federal Court of Appeal made clear in September that the ostrich farm's owners were unlikely to succeed before the Supreme Court of Canada with arguments that failed to raise "a serious or arguable issue."

Vavilov was born in Toronto in 1994 to Russian spies posing as Canadians under assumed names — who would later be arrested in the U.S. and charged with espionage. Their story formed the basis for the hit TV series The Americans.

In 2014, the Canadian Registrar of Citizenship cancelled Vavilov's citizenship — after concluding that the rule granting Canadian citizenship to individuals born in Canada exempted children of diplomats, and other representatives or employees for foreign governments.

He challenged the decision in Federal Court, sparking a fight with Canada's Minister of Citizenship and Immigration that continued all the way to the Supreme Court of Canada.

On the surface, those facts may appear to be a million miles removed from the plight of more than 300 ostriches on a farm in Edgewood, B.C., facing destruction because of the threat of avian flu.

But the issue underlying both cases is the role of the courts in reviewing discretionary policy decisions.

"The Supreme Court’s objective, in [Vavilov's case], was to develop a coherent and unified approach to judicial review that applies to a spectrum of administrative decision-makers," Federal Appeal Court Judge Gerald Heckman wrote last September.

"This includes the CFIA decisions reviewed by the Court."

The CFIA ordered a cull of the birds on Dec. 31, 2024 — within 41 minutes of receiving positive avian flu results from carcasses of two of some 25 to 30 ostriches which had died over the previous three weeks at Universal Ostrich Farm.

Universal Ostrich's owners applied for an exemption from the CFIA's so-called "stamping-out" policy — which aims to counteract the spread of viruses with the potential to harm Canada's animal health, human health and international trade through "swift elimination of infected populations."

The agency rejected the exemption application, which was grounded in the birds' allegedly "rare and valuable genetics" and the farm's claims that affected ostriches had been separated from the flock.