The Ministry of the Environment and Climate Change
("MOECC") has posted to the Environmental Registry
("ER") a proposal for a draft regulatory amendment to
exempt reflective building surfaces (such as the windows of office
buildings) from requiring an Environmental Compliance Approval
("ECA"). (Unfortunately, the date for providing comments
has just passed).
Reflective building surfaces are known to lead to
"bird-building collisions." These surfaces confuse birds,
causing them to fly into the building, often killing them as a
As the MOECC notes in its posting, "there is currently no
Environmental Compliance Approval process for sources emitting
radiation in the form of reflected light." It has been the
MOECC's practice, however, to not require ECAs for reflected
This practice appears to have come into question after a 2013 decision from the Ontario Court of
Justice–Podolsky v Cadillac Fairview Corp, 2013
ONCJ 65. In that decision, the result of a private prosecution
conducted by Ecojustice lawyers, Justice Green held that the
defendants (the owners and operators of a building complex in
northern Toronto associated with frequent bird strikes) had
permitted the discharge into the natural environment of a
contaminant that may cause an adverse effect in contravention of
section 14(1) of the Environmental Protection Act, RSO 1990, c
However, Justice Green ultimately found the defendants not
guilty because, he concluded, that they had exercised appropriate
due diligence (findings which were
previously critiqued on this blog).
The MOECC's move to exempt reflective surface light emission
appears to be a response to the decision, which seems to have
created uncertainty as to whether buildings with reflective
surfaces required an ECA to operate.
Fatal Light Awareness Program
("FLAP") estimates that potentially over 9 million birds
are killed by bird strikes in Toronto alone each year. Most of the
birds affected are small migratory birds drawn at night by the city
lights. They fly into buildings possibly by mistaking the
reflection to be shelter or by attempting to fly through what they
incorrectly perceive as clear passage to trees on the other
The MOECC's ER posting underscores that this proposed
exemption regulation will "provide clarity to businesses
regarding a ministry practice not to require Environmental
Compliance Approvals for reflected light"–which is
almost certainly true.
But how will the issue of bird strikes be addressed?
The ER posting makes reference to the province's interest in
working with key stakeholders such as building operators,
NGOs, developers, and municipal governments to address the issue of
bird strikes. But the province appears to be taking the
position that encouraging voluntary measures by developers and
building operators is the best way to achieve this.
Unfortunately, mitigating bird strikes can be expensive, and
voluntary efforts have only enjoyed modest success in preventing
these kinds of strikes.
The ultimate burden may fall, at least in part, to
municipalities. The City of Toronto's Green Standard, for example, requires certain
mitigation measures for new buildings whose windows would otherwise
be likely to lead to bird collisions.
To be clear, the proposed exemption regulation would not appear
to neutralize the court's decision in Podolsky. It appears that
such emissions, should they result in harm to birds, are still
subject to possible prosecution.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).