During media interviews yesterday, I said the recent judgment by Justice Melvyn Green in one of our prosecutions was a significant environmental law precedent and a major victory for migratory birds, albeit not a complete victory.
Was this line just old-fashioned spin for the media, given that the company was ultimately acquitted of the charges? The answer is no. Sometimes even when Ecojustice loses in court, we win for the environment.
The challenge from day one in this case was to convince the court that the Ontario Environmental Protection Act (EPA) applies to deaths caused by reflected light that deludes birds into flying into windows. Hundreds of birds, including ones like warblers and olive-sided flycatchers that are listed as species at risk in Canada, were killed or injured at Cadillac Fairview’s north Toronto office complex during the 2010 spring and fall migrations. Cadillac Fairview maintained that it was sorry about killing and injuring birds (once Ecojustice proved it) but that the law did not apply to them or to this situation – all they were doing was ‘passively’ owning or operating an office complex.
Specifically, Ecojustice needed to prove under s. 14(1) of the EPA that:
a. Reflected sunlight from windows is ‘radiation,’ as set out in the section
b. Radiation was being emitted from the buildings’ mirror windows
c. The reflected light (carrying the illusion of trees and sky) was killing or injuring migratory birds.
The court accepted our evidence and was convinced ‘beyond a reasonable doubt’ that Cadillac Fairview had committed the prohibited act (namely, killing birds by emitting a contaminant from its windows). And it gets better, because the court also found that it was convinced ‘beyond a reasonable doubt’ that Cadillac Fairview had ‘killed’ or ‘harmed’ birds that were protected by the federal Species at Risk Act (SARA). While the EPA applies only to Ontario, SARA applies across Canada. The judge noted that there did not appear to be any precedent under s. 32 of SARA.
However, Judge Green ultimately decided to dismiss the charges against Cadillac Fairview on the grounds that the company was taking reasonable measures to address the prohibited act. The company began investigating solutions after Ecojustice laid similar charges against a different building owner and subsequently installed window films (specifically, an innovative product that is now commercially available) on the most lethal side of their complex at a cost of over $100,000. The company also committed to retrofitting the remainder of the complex.
This is a victory in our eyes for several reasons:
The law is now clear that emitting reflected light that kills birds is an offence under the EPA. This is good news for the thousands of birds that die in window collisions in Toronto each year.
The Ontario Ministry of Environment must regulate (under s. 9 of the EPA) such buildings, given they are discharging a contaminant that is killing birds.
Directors of corporations can now be told of their duty to comply with the law AND they must ensure the problem of reflective windows is addressed.
Under the Species at Risk Act, building owners or managers can be convicted under s. 32 for the conduct of killing or injuring birds in window strikes even though their conduct is inadvertent.
It’s a real victory for migratory birds and a pyrrhic victory for Cadillac Fairview. That’s because even though the court in this particular case said Cadillac Fairview was on its way to addressing the problem, the dilemma for the company is that it’s one of the biggest owners and managers of commercial properties in Canada. This means that it has a lot of work to do at other buildings where birds are being killed – and where it hasn’t done anything to address the issue.
And this is also why it’s a real victory for migratory birds: The law has now been interpreted – for the very first time – to make clear that it applies to reflected light and therefore protects birds from window strikes. All building owners including Cadillac Fairview must comply with the law.