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Ecojustice has done another important public service by prosecuting Cadillac Fairview for slaughtering migratory birds, including endangered species, with a particularly lethal set of mirrored buildings, the Yonge Corporate Centre (“YCC”) office buildings in Toronto.

According to Judge Melvyn Green in Liat Podolsky (“EcoJustice”) v. Cadillac Fairview Corp. et al, CADILLAC FAIRVIEW CORP. LTD., YCC LTD. and CF/REALTY HOLDINGS INC. did all breach the Environmental Protection Act) and the federal Species at Risk Act in 2010 by reflecting light from their mirrored buildings in a Toronto ravine, which lured huge numbers of birds to their deaths. However, the companies were acquitted of the charges, on the grounds of due diligence;  in 2010, they had been among the most conscientious building owners in Toronto about bird safety. This defence would not succeed a second time, unless they install the new reflective films that slash bird strike deaths. Other buildings will have to do the same.

Reflected light from mirrored buildings lures thousands of migratory and endangered birds to their deaths every year. We used to think that too much light at night was the main culprit, but the daytime carnage can be even larger.

Judge Green’s legal analysis of the actus reus (the substance of each offence) is impeccable and will set an important precedent: emissions and reflections of light from buildings, which lure birds to their deaths, do breach the Environmental Protection Act and the Species at Risk Act.

I must admit, however, that I found his explanation of his conclusion on due diligence less clear and less persuasive. It seemed to be based on findings that Cadillac Fairview had been generally conscientious on other bird issues, such as reducing unnecessary light at night; that they did take some remedial action after the charges were laid; that without their cooperation, FLAP would not have been able to collect the evidence of the large numbers of birds killed at their buildings; and that they would have had to compromise other important values, or at least make substantially more effort, to have avoided the offence.

To me, all of these factors go to sentence, not liability. As I understand the law on due diligence, it must relate to efforts made to avoid the specific offence charged, and not to a general attitude of overall compliance and responsibility, or to efforts to prevent other offences. I do not see, in the judgment, evidence that Cadillac Fairview had made any serious effort to prevent these specific offences, i.e., the killing of large numbers of migratory and endangered birds during the charge period by reflected light from its buildings. They had shown some interest in the issue, and had made some inquiries of FLAP, but they had not retained a consultant, or even FLAP itself, to develop effective remedial measures.

Thus, I would have convicted Cadillac Fairview, but imposed only a modest fine, in view of the factors that Judge Green identifies. Quite possibly, I would have imposed a minimal fine, in exchange for an order requiring Cadillac Fairview to install the bird safe coating throughout the YCC, and to evaluate whether the same coating was necessary on its other buildings.

But then, Judge Green heard the evidence and arguments, and I did not.…

The judgment text can be viewed here.

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