COURT OF APPEAL FOR ONTARIO

CITATION: Militky v. Drummond/North Elmsley (Township), 2015 ONCA 408

DATE: 20150605

DOCKET: C59809

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

[1] The appellants want to run a commercial paintball facility in an area zoned as a “Private Park” in the respondent Township.

[2] The 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.

[3] In our view, the motion judge made no error in his conclusion, which is eminently sensible.

[4] The 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.

[5] The 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.

[6] The 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.”