Ecojustice Blog – Nature Posted on November 19, 2015 (updated: March 29, 2017)

Take action now to stop deadly bird strikes

Ecojustice lawyer John SwaigenJohn SwaigenLawyer
CC0 Public Domain
Photo by CC0 Public Domain

Speak out against Ontario’s plans to abandon its responsibility to protect migratory birds from crashing into skyscraper windows

Toronto lies along an important migratory route that brings birds from Central and South America to Canada’s boreal forest each spring — and then back again in the fall.

Along their lengthy journey, these birds face many hazards, but one of the most significant factors affecting their travel are the mirrored windows of the city’s many skyscrapers — birds commonly confuse them with a continuation of sky and trees. Every year millions of these migratory birds, including the endangered Canada warbler, are killed or injured when they strike these reflective windows at high speeds and suffer blunt force trauma.

Preventative measures are available: The Ministry of the Environment and Climate Change could refuse a permit for buildings with mirrored glass, or could issue a permit subject to conditions such as a requirement to apply bird-deterring film markers to the window surface. In practice, the Ministry does neither, despite a 2013 ruling of the Ontario Court of Justice — in response to a lawsuit Ecojustice lawyers brought against building owner Cadillac Fairview Corporation — confirming that mirrored windows that kill birds violate the Environmental Protection Act (EPA) and the Species at Risk Act where the birds are endangered or threatened.

To make things worse, in late October, the Ministry of the Environment and Climate Change gave notice that it intends to make a regulation exempting reflected light from the permit requirements in the EPA. This would nullify our 2013 legal victory which established that light reflected from the mirrored windows of office buildings is a “contaminant” under the EPA. As a result, building owners could only install mirrored windows if they obtained a permit, called an Environmental Compliance Approval (ECA), to do so.

The Ministry’s proposed regulation means that the law cannot be used to prosecute building owners who install mirrored glass windows without a permit. The proposal will instead rely on voluntary measures, which would leave bird protection in the hands of building owners.

We are not the only ones troubled by the Ministry’s plans. In her annual report, released on Nov. 3, Environmental Commissioner Ellen Schwartzel was critical of the Ministry’s proposed approach:

The court ruled that reflected light that causes injury or death to birds constitutes a discharge of a contaminant under the EPA. It follows then, as per section 9 of the EPA, that any structure that reflects light that may cause injury or death to birds should require an ECA. However, the underlying message of the MOECC’s decision to deny this application is that the ministry will not actively regulate the impacts of reflective buildings on birds by requiring an ECA or by some other means. Instead, it appears that the ministry’s preferred approach is to ignore its regulatory responsibility and leave it up to property owners and managers to voluntarily follow guidelines and suggested strategies.

Two City Councillors and a coalition of over 40 environmental groups and experts have also voiced their concerns about the proposed exemption.

You can help by taking a stand for the birds today. Send a comment to remind Ontario’s Ministry of the Environment and Climate Change that it has a responsibility to protect migratory birds from avoidable injury and death.

* Update * The deadline for public comment how now passed. Comments were due December 4, 2015.

Other possible alternatives to the Ministry’s amendment

The Ministry should exempt buildings with mirrored windows from the ECA requirement only if it replaces this requirement with an enforceable alternative that is equally effective in preventing bird strikes.

Before stripping itself of its enforcement powers, the Ministry could consider alternatives such as “permit-by-rule”. This means that instead of processing each application for a permit one at a time, the Ministry could make a regulation that will impose binding conditions on all builders and operators of commercial buildings — conditions like installing bird-deterring film makers on the lower windows of such buildings.

By exempting reflected light contaminants, the Ministry is removing one of the key tools it has available to prevent bird strikes to commercial buildings. Help us spread the word about the proposed amendment, by sharing the information, and commenting on the Ministry of Environment’s registry by Dec. 4. The birds are counting on us.

How to take action

Submit your comment online by heading over to the Environmental Registry and filling out the submission form, contact information and comment box sections — this will allow your comment to become part of public record.

Wondering what you should say in your comment? Here are a few suggestions:

  • By exempting reflected light contaminants from the permit requirements in the Environmental Protection Act, the Ministry is removing one of the key tools it has available to prevent bird strikes to commercial buildings.
  • The Environmental Commissioner of Ontario has stated that this failure to enforce the EPA creates regulatory gaps that threatens large numbers of birds — at a time when many migratory bird species are already in decline.
  • The Ministry has a responsibility to protect migratory birds from avoidable injury and death, and relying on building owners’ voluntary measures for bird protection should not be their solution.

And before pressing submit, ensure that you do not put any personal information (such as your name or where you live) in the comment box itself as this will prevent your comment from being viewed. The comment period closes Dec. 4, 2015, so be sure to take action and have your voice heard.

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