Michael S. Polowin

The respondent municipality was successful in defending an application and sought costs of $7,689.00 on a partial indemnity basis.

The applicants argued costs should be denied because the respondent introduced facts in its factum regarding the existence of private parks that were not included in the Agreed Statement of Facts.

The court rejected this argument, noting the applicants had addressed the issue and could have easily verified the public record prior to the hearing.

The court awarded the respondent its claimed costs of $7,689.00.

Property owners sought declarations that a proposed paintball facility on land zoned “rural” was a permitted use under a municipal zoning by-law.

The municipality maintained the proposed use constituted a commercial recreational activity requiring rezoning.

Applying modern principles of statutory interpretation to municipal by-laws and considering the zoning by-law within the broader framework of the municipality’s Official Plan, the court held that a “Private Park” under the by-law referred to passive recreational open space intended for limited private use rather than commercial recreation offered to the public.

The court concluded the proposed paintball facility more closely resembled a “Place of Recreation” where recreation is provided for a fee and therefore constituted a new commercial use.

As new commercial uses in the rural designation required a zoning amendment, the applicants’ request for declaratory relief was refused.