Cadillac Fairview, one of Canada’s largest commercial property owners and managers, was charged under s. 14(1) of the Environmental Protection Act (EPA) and s. 32(1) of the federal Species at Risk Act (SARA). In a ruling released Monday, Judge Melvyn Green of the Ontario Court of Justice found that hundreds of birds, including threatened species, had been injured and killed at the company’s Yonge Corporate Centre, consisting of three office buildings in Toronto, during the 2010 spring and fall migrations. Judge Melvyn ruled that both the EPA and SARA are properly interpreted to prohibit reflected light from building windows, which fatally attracts birds.
The court, however, acquitted Cadillac Fairview and related companies of the charges on the basis that steps were being taken to address the problem. The company began investigating 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. The company also committed to retrofitting the remainder of the complex.
“Although the charges were dismissed, this is a significant legal precedent that will protect thousands of migratory birds,” said Ecojustice lawyer Albert Koehl, one of the case prosecutors. “The law is now clear that owners and managers of buildings with reflective windows that kill or injure birds must take action. This is a major success, even if it’s not a complete victory.”
The court found that light reflected from the Yonge Corporate Centre’s glass windows was responsible for luring the birds to their injury or death. Migratory birds are confused by the illusion of safe havens like sky and trees reflected in windows. Buildings with highly reflective windows, like those found at the Yonge Corporate Centre, are especially dangerous for birds.
Judge Green rejected Cadillac Fairview’s argument that the law does not apply to protect migratory birds from reflected light. He concluded, however, that the company was on the way to addressing the problem and acted reasonably in the circumstances.
“The judge’s ruling also means that the Ontario Ministry of Environment will now be obliged to regulate buildings whose reflective windows are killing birds,” said Koehl.
The ruling marks the first time that the EPA and SARA have been found by a court to apply in the case of window strikes that kill birds.
Window films with markers are only necessary on the lower floors of buildings, where birds face the greatest danger. The City of Toronto has recommended the use of window markers since 2007.
The Fatal Light Awareness Program, an environmental group that works to protect migratory birds in the urban environment, estimates that collisions with the city’s buildings kill one million birds each year. These birds offer enjoyment to Canadians for their beauty and diversity, but they also provide an invaluable resource to our economy by consuming crop-destroying insects.
This is the second Ecojustice-led prosecution addressing collisions between migratory birds and buildings in Toronto. The first involved Menkes Developments and related companies, which were charged with causing the injury or death of migratory birds at its Scarborough office complex. A Justice of the Peace dismissed those charges on Nov. 14; however, after charges were laid, the owners retrofitted the office complex with bird- deflecting film to reduce bird strikes. Ecojustice and Ontario Nature are appealing the Justice of the Peace’s decision in that case.