Lethal Buildings: Litigation to Protect Migratory Birds

Written with Meredith James

It’s a horror story – the beautiful glass-walled building you may work, shop or live in are killing millions of migratory birds. Many SLAW readers are likely familiar with the distressing thud of a bird breaking its neck or wing on those lovely glass panes, often at night when building lights are left on.

At least 1 million migratory birds die in Toronto alone each year due to collisions with buildings. The birds become confused by reflections and lights in urban areas and fly into windows at full speed. Often killed or badly injured, they fall to the ground where they may be eaten by gulls or raccoons or simply tossed into the garbage by maintenance staff. It is a wholly unnecessary tragedy.

Ecojustice and Ontario Nature are doing important work to force property managers to pay attention to this slaughter. They filed private prosecutions against the owners of two of the most deadly buildings in the Greater Toronto Area – Menkes’ Consillium Place office complex and the Cadillac Fairview Yonge Corporate Centre. They alleged that the property owners were responsible for hundreds of bird deaths in 2008 and 2009 in violation of the Environmental Protection Act (EPA) and the Ontario Society for the Prevention of Cruelty to Animals Act (OSPCAA). The case against Cadillac Fairview, the owners of the Yonge Corporate Centre, also involved charges under the federal Species at Risk Act because about 10 of the birds that it killed are “threatened”, per the federal Species at Risk Public Registry.

These building owners did not intend to slaughter migrating birds, but are they responsible for the harm that their buildings cause, year after year after year? According to basic environmental law principles, yes, they are. In R. v. Sault Ste. Marie, the Supreme Court of Canada discussed the tension in public welfare offences:

Public welfare offences obviously lie in a field of conflicting values. It is essential for society to maintain, through effective enforcement, high standards of public health and safety. Potential victims of those who carry on latently pernicious activities have a strong claim to consideration. On the other hand, there is a generally held revulsion against punishment of the morally innocent.

Most environmental offences involve strict liability– a “half-way house” between absolute liability and mens rea. The prosecutor need not prove intent, but the defendant can escape liability if she had been duly diligent, i.e. if all reasonable measures were taken to prevent the commission of the offence. And due diligence is possible. Even mirrored buildings built on flyways can significantly reduce the number of birds killed, through retrofits and turning off lights; see Toronto’s Bird Friendly Development Guidelines. Menkes, for example, undertook substantial renovations to reduce bird strikes after Ecojustice laid its charges.

Surprisingly, Justice of the Peace Turtle found that the owners of Consilium Place were not responsible. Although he found that hundreds of birds were indeed killed or injured after striking the windows of Consillium Place, he dismissed the charges against the property owners, Menkes Developments.

He found that the Legislature did not intend that reflected sunlight be considered a “contaminant” under the EPA; the EPA governs only “harmful” radiation. Further, Menkes did not discharge, cause or permit the discharge of the light – the windows on the building merely reflected the light from the sun. Even if the reflected light were a contaminant, he found that Menkes had been duly diligent in preventing the harm. There were, apparently, no standards in place at the time the building was constructed setting out bird-safety considerations.

The charges under the OSPCAA were also dismissed. Justice of the Peace Turtle found that cruelty under the OSPCAA must be deliberate. (We do not know why he found that this offence requires mens rea.) Section 11.2 of the OSPCAA states that “no person shall cause an animal to be in distress.” Distress is defined as “the state of being in need of proper care, water, food or shelter or being injured, sick or in pain or suffering or being abused or subject to undue or unnecessary hardship, privation or neglect.”

Fortunately, Ecojustice plans to appeal. Meanwhile, another court’s decision regarding the charges against Cadiallac Fairview, under the EPA, OSPCAA and SARA, is under reserve.

As always, litigation is only one route to solving a problem. One of the simplest answers: TURN OFF YOUR LIGHTS in any room you’re not using, especially in the shiny towers, and doubly if there is a creek or ravine nearby. It saves lives, and it saves money. Will your lights be off when you go home tonight?