COURT OF APPEAL FOR ONTARIO
BEFORE: Feldman, Hourigan and Benotto JJ.A.
BETWEEN
Däg Militky and Allison Militky
Appellants (Applicants)
and
The Corporation of the Township of Drummond/North Elmsley
Respondent (Respondent)
COUNSEL:
Michael S. Polowin and Roberto D. Aburto, for the appellants
Janet Bradley, for the respondent
Heard and released orally: June 3, 2015
On appeal from the order of Justice Kenneth E. Pedlar of the Superior Court of Justice, dated December 3, 2014.
ENDORSEMENT
1The appellants want to run a commercial paintball facility in an area zoned as a “Private Park” in the respondent Township.
2The motion judge determined that the type of facility contemplated fits within the type of use described in the definition of “Place of Recreation” in the By-law, and not within the type of use described in the definition of “Public Park”, which is informative of what is contemplated for a “Private Park” as well.
3In our view, the motion judge made no error in his conclusion, which is eminently sensible.
4The Official Plan provides in s. 4.3.6(7), that:
New commercial uses shall only be permitted by an Amendment to the Zoning By-law.
5The Private Park was previously used as an equestrian facility. Therefore the proposed paintball operation is a new commercial use that requires an amendment and the input of the Municipality. The appellants have applied for such an amendment.
6The appeal is dismissed with costs to the Township on the partial indemnity scale fixed at $22,500, inclusive of disbursements and HST.
“K. Feldman J.A.”
“C. W. Hourigan J.A.”
“M. L. Benotto J.A.”