Ecojustice Case – Nature Case Status: Victory

Protecting migratory birds from collisions with office buildings

Albert KoehlLawyer
Ecojustice lawyer John SwaigenJohn SwaigenLawyer
Ecojustice scientist Liat PodolskyLiat PodolskyScientist
Ontario NatureClient
Office building

In 2012, legal action persuaded a property owner to retrofit its Toronto office complex to reduce the number of migratory birds colliding with its windows. The case began in 2010 when Ontario Nature, represented by Ecojustice staff lawyer Albert Koehl, filed a private prosecution against Menkes Developments and several related companies. Ontario Nature alleged that Menkes had caused the deaths of hundreds of migratory birds in 2008 and 2009. The birds died after striking windows at Consilium Place, a three-tower office plaza.

Birds are commonly confused by the reflections of blue skies and trees in windows, which leads to severe injury or death. The problem is most serious in buildings that have highly reflective windows. Toronto lies at the heart of one of the busiest migratory bird routes in North America.

Menkes et al were charged with violating Ontario’s Environmental Protection Act for discharging a contaminant that causes or is likely to cause harm to birds. They were also charged under the Ontario Society for the Prevention of Cruelty to Animals Act.

After the charges were brought, the property owner began installing films intended to prevent birds from colliding with highly reflective windows. But at the end of the trial, an Ontario Justice of the Peace dismissed charges that reflected light from Consilium Place caused the death or injury of hundreds of birds. Ontario Nature appealed the decision in 2012. Both defence lawyers and Crown agreed that the appeal should be granted because the Justice of the Peace failed to provide intelligible reasons for his decision. The case did not return to trial because of a second lawsuit we filed. This second case resulted in an Ontario judge setting a significant legal precedent that protects migratory birds from lethal collisions with the highly reflective windows.

Judge Melvyn Green of the Ontario Court of Justice found that hundreds of birds, including threatened species, had been injured and killed at Cadillac Fairview’s Yonge Corporate Centre during spring and fall migrations in 2010.

Judge Green ruled that Ontario’s Environmental Protection Act and Canada’s Species at Risk Act prohibit reflected light from building windows, which fatally attracts birds. However, the court acquitted Cadillac Fairview and related companies of the charges because they had begun to address the problem. Cadillac Fairview looked at window films as a solution after Ecojustice laid similar charges against a different building owner, and subsequently installed window films on the most lethal side of their complex at a cost of over $100,000.

 

Why was Ecojustice involved?

The City of Toronto lies along an important migratory bird route that brings birds from Central and South America to Canada’s Boreal Forest each spring — and back again in the fall. There are many hazards along the way, but one of the most significant is the reflective or mirrored windows of office buildings. Each year up to one million birds die in collisions with Toronto buildings.

We took on these cases because we believe that property owners must take reasonable precautions to protect wildlife as required by law. When solutions are readily available, building aesthetics and profit margins shouldn’t trump the protection of vulnerable species.

 

What does this victory mean?

As a result of these cases it is now an offence to injure or kill birds with light reflected from building windows under Ontario’s Environmental Protection Act.

According to section nine of the Environmental Protection Act, Ontario’s Ministry of the Environment must regulate any building discharging a contaminant that is killing birds. Under Species at Risk Act, building owners or managers can be convicted under section 32 for the conduct of killing or injuring birds in window strikes.

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