



COURT OF APPEAL FOR ONTARIO

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

DATE: 20150605

DOCKET: C59809

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)

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.


