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The Globe and Mail

Landlord cleared in deaths of birds that hit glass towers

A dot pattern in the glass at 20 Queen Street West, the head office of Cadillac Fairview, in 2010. Patterns like this one make glass facades visible to birds, preventing collisions. Cadillac Fairview is employing these systems on several of its buildings.

J.P. MOCZULSKI/The Globe and Mail

In a court judgment that seemed to please everyone, a major land developer and landlord accused of violating animal-welfare laws because countless migrating birds were killed or injured when they crashed into its reflective, glass-sheathed towers in Toronto was acquitted Monday on all charges.

There was no doubt the birds were coming to grief, Justice Melvyn Green concluded in his keenly awaited ruling.

But the company, Cadillac Fairview, has been diligent in rectifying the situation, the judge found, and the lawyer for the group that initiated the action was pleased with the outcome, calling it a landmark decision that will compel other building owners to take similar remedial action.

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"I find that the prosecution has established the actus reus of two of the three offences charged but that the defendants have demonstrated that, in all the circumstances, they acted with due diligence and have thus discharged their burden," Justice Green wrote.

Lawyer Albert Koehl, acting for Ontario Nature and Ecojustice, a Toronto-based lobby group and law firm that brought a similar but unsuccessful action last year against Menkes Developments, said he was content.

"The judge acquitted (Cadillac Fairview) based on the fact that they had taken all reasonable measures in the circumstances. This is, however, a significant legal precedent and we would call it a major victory, not a complete one.

"It means that other building owners now would be liable under the law. The message is: The law requires you to address this."

The solution Cadillac Fairview is currently implementing entails placing a film over top of the glass, as a kind of marker, so the birds can see there is an obstacle up ahead.

At issue was Yonge Corporate Centre, a complex of three buildings on Yonge Street near York Mills Rd. that was built in the late 1980s.

The side of one building, which Mr. Koehl estimated was responsible for more than one-third of the 800-plus bird deaths recorded during a nine-month period in 2010, has already been retrofitted, to a cost of about $100,000

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"And they have committed to retrofitting the rest," Mr. Koehl said.

The two sides went to court in April.

Cadillac Fairview is one of the first companies in Canada to install the protective measures, spokesman Jamie Okorofsky said, adding that it's hoped the number of bird strikes will fall by 80 per cent.

Cadillac Fairview pleaded not guilty to violating the federal Species at Risk Act, the federal Environmental Protection Act and the Ontario Prevention of Cruelty to Animals Act. Two of the three charges had substance, Justice Green found.

Menkes, which owned Consilium Place, a group of high-rise buildings in Scarborough, was prosecuted on the same basis.

As with the Cadillac Fairview case, Ecojustice and the non-profit Fatal Light Awareness Program (FLAP), which has tracked millions of bird casualties, contended Menkes was at fault because the building's design misled birds into believing they were flying into open sky.

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That case was thought to be the first of its kind in North America.

But while no one disputed that thousands of birds had been killed or injured when they crashed into the building's mirrored glass windows, Justice of the Peace William Turtle ruled in November that Menkes could not be held responsible.

Menkes nonetheless retrofitted the building, which it later sold, and the number of bird casualties dropped significantly there, too.

Toronto has long been viewed as one of the world's most perilous cities for migratory birds. FLAP has estimated that up to nine million birds perish each year after crashing into tall buildings in Greater Toronto, and numerous others are injured.

That's just a fraction of the total continent-wide, says FLAP, a 60-strong volunteer group that retrieves dead birds and tries to assist injured ones.

Across North America, the estimated number of migrating birds killed annually in collisions with buildings has been estimated at 100 million to 1 billion birds, says FLAP. Since 1993, FLAP has documented more than 54,000 birds, from 164 different species, as having flown into windows or glass exteriors in Greater Toronto.

Cadillac Fairview has clearly been trying to do the right thing, said FLAP executive director Michael Mesure, who has worked closely with the developer.

"The judgment today has certainly started to set up the future for this issue on a totally different plane than it was before."

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