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Building owners not responsible for deaths of birds that fly into it, judge rules

Consilium Place

STEVE RUSSELL/TORONTO STAR FIL:E PHOTO Many birds are killed when they fly into Consilium Place in Scarborough.

Environmental groups and animal rights advocates have lost a landmark lawsuit in the years-long fight to curb fatal bird collisions.

In a decision Wednesday, Justice of the Peace William Turtle dismissed three charges against Menkes Developments under the federal Environmental Protection Act and the Ontario Society for the Prevention of Cruelty to Animals Act.

The ruling comes more than two years after Ontario Nature and Ecojustice, an environmental law firm, launched an unprecedented action, claiming more than 800 birds were killed or crippled after crashing into Consilium Place, a cluster of high rises near Highway 401 and McCowan Rd.

The prosecution had charged sunlight reflected off Consilium’s mirrored glass windows was considered radiation and, therefore, a contaminant under the Environmental Protection Act. The light, they said, confused birds, leading them to crash into the building.

“We’re disappointed by the decision. However, the irony is that the building has now been retrofitted with window film,” said Ecojustice lawyer Albert Koehl. “The number of collisions is dramatically down, so there are obviously solutions that do work.”

Consilium was long considered the deadliest building complex in Toronto, according to the non-profit Fatal Light Awareness Program, which has tracked bird collision in the city since 2003. The group reported more than 7,000 birds had slammed into Consilium’s mirrored glass between 2000 and 2010.

But after the trial started in 2011, Menkes, working with FLAP, retrofitted Consilium with an outer-layer film designed to steer birds away from the glass.

Sonya Buikema, vice-president of commercial property management at Menkes, said the company has “worked hard and diligently and with good faith” in its efforts to decrease bird deaths.

Michael Mesure, FLAP’s executive director, said the number of bird collisions has now dropped to about 200 incidents so far this year. Menkes sold the Consilium property to Kevric Real Estate Corporation in July.

“There is no dispute birds are being killed at Menkes properties,” Turtle said in a ruling delivered in a tiny Scarborough courtroom. However, he ruled the developer could not be held responsible for the natural discharge and reflection of sunlight.

Turtle also ruled Menkes made no active effort to harm birds – “they are merely owners,” he said.

Ecojustice lawyers are expecting a ruling in a similar suit against Cadillac Fairview Corp., which owns and operates the Yonge Corporate Centre, near Yonge St. and York Mills Rd., in early December.

Cadillac Fairview faces three charges under the Species at Risk Act, the Environmental Protection Act and the Ontario Society for the Prevention of Cruelty to Animals Act after more than 800 birds died or sustained near-fatal injuries when they collided with the north Toronto towers between March and November, 2010.

About 10 of those birds, including Canada warblers and olive-skinned flycatchers, are listed as “threatened” in the federal Species at Risk Public Registry. – News