On October 31, 2023, M.P. Chris Glover introduced a Private Member’s Bill, Bill 145, “An Act to amend the Building Code Act, 1992 with respect to bird-safe windows” (the “Bill”). The short title of the proposed Act is Bird-Safe Windows Act, 2023.
Private member’s bills do not usually become law, but its introduction reminds us that the birds need protecting and that ongoing work has been happening towards this goal for several decades.
The Bill would take this work one step further and seeks to amend section 34 of the Building Code Act, 1992, S.O. 1992, c. 23 (“BCA”) to do one thing: to provide that Ontario Regulation 332/12 (the Building Code) made under the BCA is deemed to include the Canadian Standards Association Bird-Friendly Building Design Standard A460 (“CSA Standard A460”), which was published in May 2019.
Where it All Began
It started with Fatal Light Awareness Program (FLAP) Canada (“FLAP”), a charity established on January 2, 1994. It is a relatively small charity, that has done outsized work. It has a budget just under $300,000, according to its most recent filing on the Canada Revenue Agency’s charities directorate.
The organization has worked to develop guidelines, policy and standards, it advocates and educates, collects data and conducts research, and also has rescue and rehabilitation programs. It also runs a “bird safe” program, to support efforts in preventing daytime and night-time bird-building collisions.
It was through this work, it became a key witness in a prosecution lead by lawyers with EcoJustice, under the Environmental Protection Act, RSO 1990, c E. 19 (“EPA”), and the federal Species at Risk Act, S.C. 2002, c. 29 (“SARA”).
The Legal Framework
Quasi-Criminal Public Welfare Laws
Birds in Canada have enjoyed protection of one kind or another across jurisdictions for a very long time, beginning with the Migratory Birds Convention, a US-Canada treaty signed in 1916. Canada, to implement the treaty, passed the Migratory Birds Convention Act, which Act was updated in 1994 and 2005.
Many provincial laws now also protect birds, through wildlife and species at risk legislation. SARA, in force since 2002, and its Ontario equivalent, the Endangered Species Act, 2007, SO 2007, c 6, also both apply to protect at-risk bird species.
It was the private prosecution by EcoJustice through its nominal prosecutor, Liat Podolski, an employee of Ecojustice, and FLAP, which provided the evidence, that introduced a new kind of protection of birds, under the EPA and SARA, related to bird-building strikes.
In the 2013 decision of Podolski v. Cadillac Fairview Corp. et al., the court held that under section 14 of the EPA, reflecting daylight constituted a “discharge” and ultimately a “contaminant”, which caused an “adverse effect” on birds. The charge laid, particularized at paragraph 67 of the decision, was as follows:
… did commit the offence of discharging or causing or permitting the discharge of a contaminant, namely radiation (light), from reflecting glass, including windows, that caused or was likely to cause an adverse effect, namely death or injury to birds…
The court similarly analyzed provisions of SARA prohibiting the killing of species at risk under that Act, and concluded that under both Acts, the “actus reus” of the offences had been met.
In public welfare offences, defendants can successfully defend on the basis of a “due diligence” defence. The court concluded that the defendants had such a defence and accordingly acquitted the defendants.
In any event, the fact that light reflecting off buildings, and causing bird strikes, could be offences under the EPA and SARA became established at law. This would, in turn, make it plain to those who own buildings now, that, in the absence of a due diligence program and measures, they are potentially at risk of successful prosecutions for bird-building collisions.
Planning Law
In addition to wildlife and environmental protection frameworks, planning law in Ontario has also had a role to play in the protection of birds. As at least one example, a 2006 decision of the Ontario Municipal Board, Palm Place Developments Inc. v. Oakville (Town), 2006 CarswellOnt 3143, considered this issue.
While not commonly done, in this matter, the Board attended at and took a “view” of the site in question.
In an amongst several issues, one issue was whether the lands proposed for development constituted “significant wildlife habitat” for migratory birds, and would therefore be subject to the “no negative impact” test laid out under the Provincial Policy Statement, 1997: specifically, that there be no negative impact on the natural features or ecological function for which the area is defined. This test remains in place in under the current Provincial Policy Statement (2020).
Ultimately the board concluded that the site did constitute “significant wildlife habitat”, and that to ensure “no negative impact”, several measures should be taken.
The height and step backs of the building were informed not only by compatibility concerns, but the Board concluded, at paragraph 161 of its decision that, “Migratory bird considerations serve to reinforce a maximum height of eight storeys. The possibility of bird collisions in the migratory bird corridor makes it important that height be limited to the tree line.”
Further, the Board, at paragraph 162 of its decision, required that the building employ bird-friendly design, in the following manner:
…that low reflective glass and other design features such as no windows in the hallways and stairwells, mitigating balconies and appropriate exterior coloration that is environmentally friendly and constitutes visual noise are used.
At paragraph 163, the Board went on to conclude that the site plan application was premature. It concluded some of the issues would need to be reviewed in conjunction with the site plan, “In particular, the nature of the glass functioning as connections between the three buildings must be reconsidered.” It further commented, “The Board has extensive authority under the Ontario Municipal Board Act to impose conditions and will do so on the basis that the site plans now tendered are premature.”
The Board has since been renamed and amalgamated into the Ontario Land Tribunal. The Ontario Land Tribunal Act, SO 2021, c 4, Sch 6, under sections 8 and 9, continues confer extensive authority on the Tribunal.
Municipal Guidelines
Another layer of “protection”, though not necessarily enforceable in the same manner, unless incorporated into official plans, are municipal design guidelines for bird-friendly buildings.
Toronto has had guidelines in place since 2007. Through its Toronto Green Standard, establishing sustainable design and performance requirements for new private and city-owned developments since 2010, it has developed best practices for glass and effective lighting.
Other municipalities have also adopted guidelines. It’s important for developers to understand the local requirements in addition to other laws and planning requirements that exist.
What the Bird-Friendly Building Design Standard Does
Bill 145 attempts to take this one level further, by incorporating the 2019 Canadian standard for bird-friendly buildings into the Building Code, in effect requiring all municipal buildings to follow this standard and obviating the need for various standards across Ontario’s 400 plus municipalities.
Amongst others, the developers of this guideline included the Cities of Toronto and Mississauga, FLAP and the Ministry of Environment, Conservation and Parks, a building owner association, educational institutions, architects, a glass company, Environment and Climate Change Canada, and the Canadian Wildlife Service. It therefore represents a cross-sector of everyone interested in the issues.
All manner of bird collision mitigation strategies are reviewed, including fly-through conditions, glazing, overall site and building design, lighting, vegetation and bird feeders.
Though unlikely to become law in the near-term, these standards would be considered in light of any potential due diligence defence in the event of a prosecution.
Conclusion
Though significant progress has been made since FLAP started its work in 1994, with reports of 3 billion birds being lost since 1970 in North America, the issue of bird-building strikes continues to be an important issue, in addition to the loss and fragmentation of habitat. It may yet be that CSA Standard A460 becomes enforceable through the Building Code. In any case, developers may be required to employ standards through local municipalities and will be at risk of successful prosecutions in the absence of employing best practices. As good environmental stewards, it will pay for building owners and builders to pay attention to bird-safe development.
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