This one's for the birds

A court case, aimed at protecting migratory birds from reflective office towers, could prove precedent-setting

This one's for the birds

Photograph by Aaron Vincent Elkaim

Bill Malis describes the sound as a “a thud. And it’s a gross thud.” The Telus call-centre employee is recalling the first time he heard a bird crash into the Scarborough, Ont., office tower where he works. It was the spring of 2005, and Malis, who had recently started a new job at Consilium Place, an office complex consisting of three mirrored high-rises, was outside on a smoke break. “I dropped my cigarette and was like, what just happened? I picked the poor little guy up—luckily it was okay—and ran across the street to let him loose in the field.”

Malis, who has the manic energy of Jim Carrey but is five foot nine and favours rockabilly-style shirts and pants, started making his rescue missions a habit. Almost every day since, before his shift begins at 7:30 a.m., Malis has patrolled the grounds around the office towers rescuing stunned birds. He makes Consilium Place sound like a zombie adaptation of Hitchcock’s The Birds. “It’s happened, birds falling into people’s meals,” says Malis, who usually finds “beaks, legs, heads, everywhere on the property over the summer from all the hawks and seagulls ripping the birds apart.”

Now, six years since his first rescue mission, Malis, 42, is a key witness in what could be a precedent-setting case against Menkes Developments, the owners of Consilium Place. On March 4, Ontario Nature and Ecojustice, two independent environment organizations, launched a private prosecution against Menkes, which could lead to big fines for using reflective windows that they allege has caused the death or injury of some 800 migratory birds over a nine-month stretch between 2008 and 2009.

In fact, over the last decade, 5,068 birds have collided into the three towers, according to the most recent data from the Fatal Light Awareness Program (FLAP), a 20-year-old migratory bird advocacy group. That’s more than any office building site in the Greater Toronto Area, says FLAP. Some of the species killed in head-on collisions include the ubiquitous robin, the rare Henslow’s sparrow and the melodic wood thrush.

The history of the case began in 2009, when Albert Koehl, a lawyer working for Ecojustice, learned about the bird collisions from a member of FLAP and saw an opportunity to clarify existing migratory bird law. At the time, he looked at the Ontario Environmental Protection Act, among others, to see if there was a way the law could be used to protect migratory birds from reflective windows.

But, says Koehl, the act doesn’t address the issue. And the most conventional interpretations of the act were unwieldy. “The hunting definition is very broad under the act, but it didn’t make sense,” says Koehl. “It would have been unusual to suggest that large office buildings were hunting migratory birds.” Eventually, Koehl settled on Section 14, a provision in the act that stipulates that a person can’t discharge a contaminant (in this case, reflected light) if it causes an adverse effect (bird injuries or deaths). Koehl says it’s the first time this provision has been argued in this way.

A spokesperson for Menkes says the building management has worked with FLAP to reduce the number of bird collisions on-site, including the installation of ultraviolet lights, ultrasonic devices, and tape that flaps loudly outside the buildings to deter birds from coming too close. “There are no other tested and proven solutions available to us at this time,” wrote Sonya Buikema, vice-president of commercial property management at Menkes. “We continue to be diligent and proactive in our efforts.”

Koehl maintains that not enough has been done. If guilty, Menkes would have to retrofit its three buildings in Scarborough at an approximate cost of $30,000 each. (That’s the price to install sticker-like film on windows to fragment the illusory sky, making it safe for birds.) But the case may have far wider implications—experts say a win for the prosecution could result in all buildings in Canada being required to comply with changes to the law or face fines of up to $6 million a day. A judgment in the case, which resumed in a small Scarborough courtroom this week, isn’t expected for months.

Often, says Mark Winfield, assistant professor of environmental policy at York University, these kind of cases are successful. They can “embarrass government to enforce laws they otherwise wouldn’t enforce,” he says. Take, for example, the 2010 Syncrude case, where a judge in Alberta found the oil company guilty of violating provincial and federal environmental laws—the Alberta Environmental Protection and Enhancement Act and the Migratory Birds Convention Act—after the death of 1,600 ducks in a toxic tailings pond. And, because environmental law is generally homogenous, says Kristi Ross, an Ottawa-based environmental lawyer, “it’s not so much of a stretch to take this case in Ontario and apply it to other provinces.”

Bridget Stutchbury, a biologist at York University and author of Silence of the Songbirds, a book about the diminishing populations of migratory songbirds, says that since the 1960s, the numbers of more than three dozen species of migratory birds have fallen by 40 per cent. Some, like the olive-sided flycatcher, are down by as much as 70 per cent. “Where we built our cities is exactly the same place birds funnel through migration,” says Stutchbury. “Literally, you’re putting huge obstacles right in their way. Their brains don’t understand what windows are.”

So winning this case would represent a major coup for bird lovers. “Except for habitat destruction, collisions with clear and reflective sheet glass and plastic cause deaths of more birds than any other human-related avian mortality factor,” writes Daniel Klem, an ornithologist at Muhlenberg College in Allentown, Pa. Klem estimates that a million birds die each year in Toronto—and three million die in Canada—from crashing into buildings. Worldwide, he says, that number is in the billions.

Regardless of the outcome, Koehl feels that the case is a win-win situation: “We hope people will get engaged and talk with their landlords to do something about the problem. Win or lose, that battle will continue.” In the interim, Malis says, “I’m going to keep on doing what I’m doing. Keep on picking up birdies.”

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