A Justice of the Peace today dismissed all charges against Menkes Developments, et al., relating to charges under the Environmental Protection Act and Ontario Society for the Prevention of Cruelty to Animals Act – and the deaths and injuries of 900 birds in 2008 and 2009 at the company’s office complex in Toronto.

How do we feel about the decision?

Disappointed? For sure.

Defeated? Nope.

Why? There are three reasons.

Reason No. 1: Reduced bird deaths at Consilium Place
Shortly after the trial began, the building owner began installing window films that have dramatically reduced the number of bird strikes in the past year. Michael Mesure, executive director of Fatal Light Awareness Program (FLAP), a group working to prevent bird strikes, told The Toronto Star that the number of incidents this year has fallen to 200. FLAP collected at least 7,000 dead or injured birds at Consilium Place over a decade.

Now Consilium Place, an office complex that FLAP documented as the most lethal for birds in Toronto, is much less dangerous.

Reason No. 2: Upcoming decision in a related case
We will shortly have the judgment of Judge Melvyn Green in a related case against Cadillac Fairview. The earlier decision is in no way binding on Judge Green. (UPDATE: Judge Melvyn Green’s decision is expected on Feb. 11, 2013)

Reason No. 3: Awareness leads to action
Public attention on these cases should motivate tenants to push building owners and managers to install effective, available window films to reduce bird deaths. Companies can no longer claim that there are no available products. The products exist and are in use.

More on the decision
In today’s decision, Justice of the Peace William G. Turtle said that birds were indeed striking and dying at the windows of Consilium Place, then owned by Menkes. He also acknowledged that birds are vital to humans and that window strikes are the leading hazard during annual migrations.

The JP ruled that light is “radiation” under s. 14(1) of the Environmental Protection Act. He found, however, that it could not be the intention of the Ontario Legislature, who enacted the law, to include light, even reflected light, as a “contaminant” given that sunlight is essential to all life.

He found that the windows were not “emitting” light.

He also concluded that the window strikes did not constitute “cruelty to animals” under the Ontario Society for the Prevention of Cruelty to Animals Act because such cruelty had to be “deliberate.” We believe his reasons provide grounds for an appeal – a decision we must make within 30 days.

Final thoughts
So are these beautiful, industrious little creatures more likely to survive migrations today than they were prior to our legal cases? We think so, and we hope for more good news in the near future.