Suit over bird deaths a North American first, lawyer says

Scarborough’s Consilium Place is one of the deadliest office complexes for migratory birds in Toronto, a pair of environmental groups are alleging in a groundbreaking lawsuit.

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Ecojustice and Ontario Nature are behind the suit against the management of the McCowan Road and Progress Avenue area complex, which consists of three 17- and 19-storey towers. According to Ecojustice, about 7,000 dead and injured birds have been documented by Fatal Light Awareness Program (FLAP) at the site over the last decade.

The lawsuit is the first of its kind in North America, Ecojustice lawyer Albert Koehl said.

“If you kill a mirgratory bird without a hunting permit, it’s illegal,” he said. “If you kill a thousand birds, there doesn’t seem to be a penalty for you. That didn’t seem right.”

Every year in North America, as many as a billion birds — including more than a million in Toronto — are killed every year by flying into buildings, according to FLAP.

Ecojustice spokesperson Kori Brus said a lawsuit was a last resort.

“For a long time before this, [Ecojustice and Ontario Nature] have approached the building owners on a voluntary basis,” Brus said.

The goal of the lawsuit, Koehl said, is to send the message to building owners that measures can be implemented to avoid killing birds.

Michael Mesure of FLAP said there are several things that can be done to existing buildings to prevent bird collisions. Visual markers on the glass are the most effective, he said.

“It can be stripes, it can be patterns, it can be flowers,” he said. “There are infinite things you can do to a building that can beautify it … and prevent bird death.”

Consilium Place attempted to scare birds away by using holographic tape, Mesure said, but that has not been effective.

“Birds learn very quickly that these are not threats,” he said. “They fly over it and they fly under it.”

The majority of bird collisions occur below 16 metres, or the first four or five storeys of a building. Visual markers only need to be placed on the windows of these floors, Mesure said.

Money and appearance are the main reasons building owners don’t take action, Mesure said.

Menkes Consilium Inc., Menkes Developments Ltd. and Menkes Property Management Services Ltd., along with three other companies, have been charged under Ontario’s Environmental Protection Act. The maximum fine under the act is $6 million per day for a first offence.

They’ve also been charged under the Ontario Society for the Prevention of Cruelty to Animals Act for causing distress to birds.

The suit is set to continue May 9–11 at the Ontario Court of Justice in Scarborough.