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Full caption and actual photo size The court dismissed the charges against Cadillac Fairview because it was satisfied that Cadillac Fairview spent more than $100,000...


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MOE to consider light as an emitted contaminant in future bird death cases, lawyer predicts

The emitted contaminant is radiating light, argues Ecojustice lawyer Albert Koehl
By David Nesseth
EcoLog, 2/22/2013 2:29:00 PM

An environmental law expert is predicting that a new landmark court ruling in Ontario may force the Ministry of Environment (MOE) to interpret the reflective windows of buildings as the discharge of a contaminant fatal to migratory birds.

The emitted contaminant is light, or specifically radiating light, argues Ecojustice lawyer Albert Koehl, one of the prosecutors in the bird death case against the Cadillac Fairview Corporation, a major property owner that operates a low-rise complex surrounded by mature trees and a golf course in north Toronto.

In the February 2013 Cadillac Fairview ruling, the court noted that “reflective glass, in particular, creates an illusion of a benign habitat, mirroring the safety of the wooded area from which birds may be flying.” Koehl says the ruling is bound to require an expanded interpretation of what constitutes the “discharge of a contaminant into the natural environment” under subsection 14(1) of the Environmental Protection Act (EPA).

“[The ruling] provides us with another option for buildings that fail to take action,” Koehl told EcoLog News. “In the same way that if you were operating a paint shop, and were emitting paint dust that affected the neighbourhood, you’d need environmental compliance approval.”

Ecojustice mounted a rare private prosecution against Cadillac Fairview because it believed there were strict liability issues at play in the deaths of hundreds of birds at the company’s complex in the fall of 2010. Some of the migrating birds, namely Canada Warblers and Olive-Sided flycatchers, are listed as a “threatened” species, the court heard.

Koehl says the MOE may need to act on the precedent created by the court’s February 11, 2013 ruling, even though the judge dismissed the charges against Cadillac Fairview. The company had been charged under subsection 14(1) of the EPA and subsection 32(1) of the federal Species at Risk Act (SARA). The Ontario Society for the Prevention of Cruelty to Animals Act, RSO 1990, c. O.36, also came into play during the trial, which often examined the physics of light and radiation.

The court dismissed the charges against Cadillac Fairview because it was satisfied that Cadillac Fairview spent more than $100,000 installing window film onto the problematic sides of its complex, a solution that evolved from a similar bird death prosecution against a separate property owner.

Judge Melvyn Green of the Ontario Court of Justice found that hundreds of birds, including threatened species, had been injured and killed flying into windows at Cadillac Fairview’s Yonge Corporate Centre tri-complex during the 2010 spring and fall bird migrations. Green ruled that both subsections of the EPA and SARA are properly interpreted to prohibit reflected light from building windows, which fatally attracts birds.

“[Cadillac Fairview] have also made some effort – too little and too late, in the prosecution’s view – to pursue and implement solutions to this problem,” Judge Green stated in his ruling.

Cadillac Fairview previously committed to retrofitting the remainder of its three-building complex, and reduced the illumination from its buildings after dark by urging tenants to shut off lights in the evening.

During the trial, Dr. Daniel Klem Jr. testified that at least one billion birds meet their death every year in the U.S. through collisions with buildings. The number, he added, is well below the number of birds killed each year by feral cats. In the Greater Toronto Area, the Fatal Light Awareness Program known as “FLAP”, a Toronto-based bird advocacy organization, estimates the number of deaths from bird-window collisions to be in the neighbourhood of one million.

During the trial, Dr. Pekka Sinervo of the Canadian Institute for Advanced Research helped explore the meaning of the word “emit” in the scientific community. He explained that “radiation” includes all instances where energy travels through space. So long as it is not at absolute zero, every object emits radiation along an electro-magnetic spectrum, he said, concluding that visible light, such as light reflecting from a window or mirror, is one form of radiation.

Whether the MOE agrees with the interpretation remains to be seen. MOE Spokesperson Kate Jordan told EcoLog News that “the ministry is reviewing the ruling and considering any implications on the current regulatory approach. The review has not been completed.”

During the trial, Dr. Klem Jr. described the Convenience Group as “the only game in town” when it comes to providing risk-aversion window film in North America.

Koehl says the court’s ruling will make it clear that owners and managers must take action if their buildings have reflective windows that kill or injure birds. He called the ruling a “major success, even if it’s not a complete victory.”

The trial also revealed alternative methods for property owners looking to make their windows bird-safe.

“Other solutions, if less effective and aesthetically pleasing, include physical netting, the application of decals and the installation of predator-like decoys or silhouettes,” stated Judge Green.

The trial referred to the City of Toronto’s retrofit of parts of the City Hall building to stop bird deaths. It installed a polka-dot patterned bird-deterrent film to windows on one of the facility’s two towers. Bird fatalities are reported to have “disappeared” at the retrofitted tower and a similar application is planned for the windows of the companion tower, the court heard.

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