Podolsky V. Cadillac Fairview Corp

ONTARIO COURT OF JUSTICE Old City Hall – Toronto BETWEEN: ) ) LIAT PODOLSKY ) A. Koehl and J. Swaigen ) For the Prosecution ) — AND — ) ) ) CADILLAC FAIRVIEW CORP. ) E. J. Babin and C. L. Spry LTD., YCC LTD. and ) For the Defendants ) CF/REALTY HOLDINGS INC. ) ) ) ) Heard: April 3, 4, 10, 11, 12, 13, 16, 17 and 18, August 16 ) and 17, September 11 and ) 24, and October 2, 2012 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [1] The case before me proceeded by way of a private prosecution. The defendant corporations are charged with a number of regulatory or public welfare offences related to the harming, injury or death of birds. The 2 Liat Podolsky (“EcoJustice”) v. Cadillac Fairview Corp. et al. Reasons for Judgement offences at issue are set out in two provincial statutes (the Ontario Society for the Prevention of Cruelty to Animals Act and the Environmental Protection Act) and the federal Species at Risk Act. The nominal prosecutor, Liat Podolsky, is an employee of “Ecojustice”, an environmental advocacy group that maintains carriage of the prosecution. The defendants are the owners and managers of the Yonge Corporate Centre (“YCC”), a complex of three office buildings in northern Toronto. The prosecution’s case against the defendants rests substantially on evidence of avian collisions, or “bird strikes”, with the highly reflective glass windows and spandrels of the YCC. [2] The three charges describe what are generally characterized as “strict liability” offences. Although there is considerable disagreement as to the proper construction of the governing law, and even more disagreement as to the law’s application to the evidence before me, it is generally acknowledged that the prosecution bears the burden of proving beyond reasonable doubt the essential physical elements, the actus reus, of each offence. If this onus is met, the burden then shifts to the defendants to establish, on a balance of probabilities, that they ought not to be held blameworthy as they exercised due diligence in meeting the appropriate standard of care. The defendants’ position is that they cannot be found guilty of the offences charged because the impugned conduct or omissions fall outside the scope of any reasonable interpretation of the reach of the charging provisions. In the alternative, the defendants say that they, in any event, have exercised reasonable care and demonstrated such, and thus are not to be faulted for any harm caused to birds. [3] As the language of the provisions and the charges is material to the resolution of this prosecution, I here set out the three offences as framed in 3 Liat Podolsky (“EcoJustice”) v. Cadillac Fairview Corp. et al. Reasons for Judgement the two Informations before me. In each case, CF/Realty Holdings Inc., YCC Limited and The Cadillac Fairview Corporation Limited are charged that, at the Yonge Corporate Centre at 4100, 4110, and 4120 Yonge Street, in the City of Toronto, they: During the period beginning on or about September 3, 2010 and ending on or about November 7, 2010 … did commit the offence of causing animals to be in distress by having or using highly reflective glass, including windows, that caused the death or injury of birds, contrary to subs. 11.2(1) of the Ontario Society for the Prevention of Cruelty to Animals Act, RSO 1990, c. O.36, as amended; During the period beginning on or about March 15, 2010 and ending on or about November 7, 2010 … did commit the offence of discharging or causing or permitting the discharge of a contaminant, namely radiation (light), from reflective glass, including windows, that caused or was likely to cause an adverse effect, namely death or injury to birds, contrary to subs. 14(1) of the Environmental Protection Act, RSO 1990, c. E.19, as amended; Between the 15th day of March 2010 to 7th day of November 2010 … did commit the offence of killing, harming, or taking individuals of a wildlife species, namely Canada Warblers or Olive-sided flycatchers, that are listed as a "threatened” species, by having or using highly reflective glass, including windows, contrary to the Species at Risk Act, s. 32(1). [4] This case is largely about the plight of migratory birds and, more particularly, those whose flight routes risk collision, often fatal, with buildings in Toronto. The reflective surfaces of a number of these buildings, the YCC among them, undoubtedly contributes to many thousands of otherwise avoidable bird deaths every year, including, it is alleged, members of some species that are legally classified as “threatened”. The defendants have been aware of the challenges posed to migratory birds by the YCC complex for many years. They have also made some effort – too little and too late, in the prosecution’s view – to pursue and implement solutions to this problem. While several complex 4 Liat Podolsky (“EcoJustice”) v. Cadillac Fairview Corp. et al. Reasons for Judgement issues present, the questions, at bottom, are whether the prosecution has established to the requisite standard that the defendants’ acts and omissions amount to the actus reus of the offences charged and, if so, whether the defendants have established that the steps they have taken to mitigate the risk of bird fatalities amount in all the circumstances to a duly diligent response to an acknowledged peril to migratory birds. [5] There is no material differences between the potential liability of the various defendants and, in any event, none is advanced by the defence. Put otherwise, the fate of all three defendants rise or fall together. Accordingly, I refer to the defendants collectively as “Cadillac Fairview” or the YCC, depending on context. [6] The prosecution called some thirteen witnesses, including three who were qualified as experts in their professional fields of endeavour. One witness, the general manager of the YCC complex, testified at the behest of the defence. This body of testimonial evidence was supplemented by a number of agreed statements of fact and a substantial volume of documentary material that was admitted on consent of all parties. [7] My verdict and the reasons for it follow. A. BACKGROUND (a) Introduction [8] An informed appreciation of the instant prosecution necessitates some understanding of the behaviour and faculties of migratory birds and their urban ecology. These considerations require, on the prosecution’s theory, at least an introduction to the physics of light and radiation. More generally, they invite an overview of the setting, construction and certain 5 Liat Podolsky (“EcoJustice”) v. Cadillac Fairview Corp. et al. Reasons for Judgement other features of the YCC. Finally, by way of essential context, some introductory mention need be made of the evolution of what, for want of a better phrase, I shall call “bird consciousness” in Toronto and, in particular, the genesis and history of the Fatal Light Awareness Program (“FLAP”), a Toronto-based bird advocacy organization. (b) The Plight of Migratory Birds [9] Most of the scientific evidence pertaining to the behaviour of birds was led through Dr. Daniel Klem Jr., an internationally recognized expert in ornithology, including bird window strikes and their prevention. Dr. Klem is also a self-acknowledged advocate for measures designed to preserve bird populations and, in particular, to reduce bird fatalities resulting from their collision with buildings. His pioneering effort have taken some years to gain traction among his peers. [10] Birds play a vital role in the ecosystem through their contributions to pollination, seed dispersion and pest control. Yet, worldwide, they are routinely decimated by the expansion of human endeavour. Habitat destruction is the major cause of bird mortality, but collisions with automobiles, wind turbines and, in particular, buildings take a very heavy toll. In addition, the mortality attributable to the predatory conduct of primarily outdoor or feral cats has very recently been estimated as between 1.4 and 3.7 billion birds a year in the United States alone: S.R. Loss, T. Will and P.P. Marra, “The Impact of free-ranging domestic cats on wildlife of the United States” (Jan. 29, 2013), Nature Communication 4, Article No. 1396. [11] According to Dr. Klem, at least one billion birds meet their death through collisions with buildings in the U.S. each year. These fatal collisions occur with office, commercial and residential buildings of varying heights, 6 Liat Podolsky (“EcoJustice”) v. Cadillac Fairview Corp. et al. Reasons for Judgement although the first few stories are most dangerous for birds because of the risk of vegetative reflection. The density of the bird population is a significant factor in the incidence of these collisions. Although bird strikes occur throughout the year, the concentrating effect of migratory patterns can exacerbate the problem along genetically embedded fly routes. The natural wooded ravine setting of the YCC, for example, affords a particularly attractive resting spot for migratory birds. Although no completely reliable figure is possible, FLAP estimates that each year approximately a million birds meet their untimely demise through collisions with buildings in the GTA. [12] Birds generally behave as though glass – whether clear or reflective – is invisible. Reflective glass, in particular, creates an illusion of a benign habitat, mirroring the safety of the wooded area from which bird may be flying. A bird can generate sufficient momentum in a few metres of flight to cause fatal head trauma upon impact. As a result, approximately half of such strikes result in the death of the colliding bird. [13] Finding solutions to the problem of avian collisions has proven challenging. Conceptually, what is required is a something that signals the presence of the windows to birds and, thereby, eliminates the risk of mistake or confusion caused by the windows’ transparency or reflectivity. Although various retrofit strategies have been devised, the most effective involves the application of visual patterns or markers to glass windows, a methodology that was experimentally recognized in the late-1970s but first published in the scientific literature in 1990.

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