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Suit seeks to protect birds from office buildings

Toronto Sun

By Michele Mandel

February 9, 2012

TORONTO - It’s been called a bird killer of extraordinary proportions.

And in the first lawsuit of its kind in North America, the shiny glass office buildings that make up the Consilium Place complex near Hwy 401 and McCowan were back on trial this week as lawyers for Ecojustice and Ontario Nature made their closing arguments about what they contend is Toronto’s most lethal structure to migratory birds.

“It’s a ritual that we close the blinds because no one wants to see a bird smack into the windows,” William Malis has testified about Telus boardroom meetings at 300 Consilium Place.

“It’s the one that has the highest casualty rate on an annual basis,” says Caroline Schultz, executive director with Ontario Nature. “Sometimes as many as 1,000 birds a year.”

Toronto lies in the heart of one of the busiest migratory bird routes on the continent and the two environmental groups maintain that mirrored windows on buildings such as the Menkes-managed Consilium Place have turned the three towers into killing fields. The birds get confused and fly toward the reflections of blue skies and trees in the windows.

“It has been years and years that volunteers with FLAP (Fatal Light Awareness Program) have been collecting the data which clearly show which buildings are lethal to birds and very little action has been taken,” Schultz argues. “Most building owners have done nothing.”

So the environmental groups took the unusual move of taking Menkes and its sister companies to court, bringing private charges before a justice of the peace under the provincial Environmental Protection and the Prevention of Cruelty to Animals acts. Ecojustice lawyer Albert Koehl has alleged that 900 birds were killed by the mirrored buildings during four migrations seasons between 2008 and 2009. “And those were only the ones that were recovered,” he says.

During the eight-day trial, Menkes Developments pleaded not guilty and argued the company has taken all reasonable measures to prevent the bird collisions. If convicted under the EPA, the maximum fine is $6 million for each day of the offence. “We’re not suggesting that,” Koehl says, “but we would like to see an order issued to take action.”

Dr. Daniel Klem, an ornithology and conservation biology professor came in from Allentown, Penn., to testify as an expert witness when the case opened last April. “Consilium is a poster child for a building that is a predictable killer,” says Klem, whose research estimates 34 million birds are killed annually in North America.

In a 2009 letter to Menkes, Klem called the complex a “bird killer of extraordinary proportions.” He says the poor economic climate means few property owners are taking the volunteer approach of retrofitting their towers with the kind of window films that deter birds. So litigation seems to be the only answer.

“It’s vital,” the professor says of the case. “It’s already brought national and international attention to the issue.”

Conservation groups around the world have their eyes on the Toronto case. “It’s precedent setting, that’s for sure,” says Michael Mesure, executive director of the FATAL.

His group’s volunteers collect dead and injured birds from the base of 80 different high rises around the GTA, with Consilium Place ranking at the top. “It’s important to point out that the buildings were not built to kill birds. It’s not the intention of Menkes to kill birds,” Mesure says. “But there comes a point where people have to take responsibility.”

Ecojustice has also filed private charges under the Species at Risk Act against Cadillac Fairview because of bird strikes at their Yonge Corporate Centre at Yonge and York Mills.

Solutions are available. In 2009, a Town of Markham pilot project used densely patterned window film on a solarium at their staff office building and collisions dropped to three birds a year from more than 100.

“We want to send a message to building owners and building managers of mirrored window buildings,” says Koehl of Ecojustice.

But the poor birds will have to wait. A decision on the case isn’t expected until November.

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