Militky v. Drummond/North Elmsley (Township)
The motion judge correctly interpreted the By-law definitions and concluded the proposed paintball facility is not an allowed continuation of the prior Private Park use but constitutes a new commercial use that requires a Zoning By-law amendment under the Official Plan, warranting dismissal of the appeal.
Source-derived case information.
- Citation
- 2015 ONCA 408
- Parties
- Appellants: Däg Militky and Allison Militky; Respondent: The Corporation of the Township of Drummond/North Elmsley
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 5 June 2015
- Procedural Posture
- Civil / Appeal From Superior Court of Justice (motion Judge)
- Outcome
- Appeal dismissed.
- Legal Topics
- Zoning Amendment, Land Use, Private Park, Place of Recreation Definition, Commercial Use
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Däg Militky and Allison Militky
Appellants
The Corporation of the Township of Drummond/North Elmsley
Respondent
Procedural Posture
Civil / Appeal From Superior Court of Justice (motion Judge)
Legal Issues
- 1 Whether a commercial paintball facility is a permitted use in a 'Private Park' zone under the By-law
- 2 Whether the proposed paintball operation constitutes a new commercial use requiring a Zoning By-law amendment under the Official Plan
Ratio Decidendi
The motion judge correctly interpreted the By-law definitions and concluded the proposed paintball facility is not an allowed continuation of the prior Private Park use but constitutes a new commercial use that requires a Zoning By-law amendment under the Official Plan, warranting dismissal of the appeal.
Court Disposition
Appeal dismissed.
Orders
- Appeal dismissed with costs to the Township on the partial indemnity scale fixed at $22,500, inclusive of disbursements and HST.
Full Case Text
Judgment text and source record
1 paragraphs
Militky v. Drummond/North Elmsley (Township) Collection Decisions of the Court of Appeal Date 2015-06-05 Neutral citation 2015 ONCA 408 Docket numbers C59809 Judges Feldman, Kathryn N.; Hourigan, C. William; Benotto, Mary Lou Subject Civil Decision Content 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.”