The Newest Contaminant under the Environmental Protection Act is Sunlight!

July 29th, 2013 by

This blog is written by our law summer student, Ira Marcovitch.

In what can only be regarded as an illuminating decision, the Ontario Court of Justice recently ruled that sunlight reflected from a building can be considered a ‘contaminant’ under provincial environmental protection legislation. In Podolsky v. Cadillac Fairview Corp., the plaintiff, acting on behalf of the advocacy group Ecowatch, brought an action against the real estate giant and owner/operator of the Yonge Corporate Centre, a complex of office towers in northern Toronto. The plaintiff alleged that the defendant was guilty of a number of regulatory offences under the provincial Environmental Protection Act (EPA), the Ontario Society for the Prevention of Cruelty to Animals Act (OSPCAA) and the Species at Risk Act (SARA). They charged that the overly reflective nature of the buildings’ glass exterior, combined with the park-like setting of the buildings had caused a number of migratory birds to collide with the buildings, killing and injuring scores.

The Court found that neither the birds in question nor the conduct of the defendant fell within the scope of the OSPCAA and quickly dismissed those charges. However, it is the Court’s analysis under the EPA and SARA that begs having a light shone on it. Section 14 of the EPA prohibits the ‘discharge’ of ‘contaminants’ into the natural environment that can cause an adverse effect on the environment. The judge accepted the evidence of a scientific expert who testified that light reflected off a building could constitute an ‘emission’ of ‘radiation’ and thus constituted a discharge of a contaminant under s.14 of the EPA. Therefore, the Court found that the defendant had committed the prohibited act under s.14, namely they caused the discharge of a contaminant, reflected light, into the environment. As far as the adverse effect, the building’s long list of avian victims satisfied this element of the offence. Likewise, the Court found that the defendant’s actions were enough to make out the offence of killing or harming an endangered species under section 32 of SARA.

However, the Court found that the defendant had successfully argued the defence of due diligence and was not liable for any of the offenses. The judge accepted evidence that, after becoming aware of the propensity of birds to collide with the towers, the defendant took all reasonable steps to stop or mitigate these collisions. He highlighted the retainer of numerous avian experts by the defendant, the application of bird-deterrents, and cooperating with animal protection groups in trying to find solutions.

While this case certainly is unique, it has some value beyond being an interesting read. Firstly, it highlights the ever expanding scope of environmental protection legislation and the willingness of courts to enforce them. For instance, in Ontario v. Castonguay Blasting, another similar decision, the Court of Appeal found that rock scattered from a controlled construction blast was a contaminant under the EPA. Second, this decision highlights the importance of environmental harm-reduction strategies for corporations. Not only are these measures socially and environmentally responsible, but this judgment shows that they are legally prudent as well. In the eyes of the Court, the fact that the preventative measures didn’t work was not as important as the fact that they were undertaken. While it would be interesting to see how an appeal court would deal with the case, it probably won’t happen. Because the defendants were found guilty of the offence but not liable because of due diligence, it’s considered a split decision, and these aren’t often appealed. However, Ontario v. Castonguay Blasting is before the Supreme Court and it will be interesting to see how they determine the scope of the EPA.

For the full decision click here.

For the Court of Appeal decision in Castonguay Blasting click here.

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