Essa faces legal costs in paintball battle
By Richard Blanchard

The final chapter in the battle between a paintball operation in Essa township and muncipality will be decided next month when a provincial court decides on the amount of costs that the township will be liable for the five year court battle over the operation.

Essa township deputy mayor Terry Dowdall confirmed Tuesday morning that the courts would be deciding the amount of court costs.

"As an ongoing legal issue, I don't want to say too much about the specifics of the case but a decision will be made on the costs owed to Mr. and Mrs. Clark," he said.

"I must say that the $400,000 figure quoted in one media report seems pretty high," he said.

In August, 2006, the provincial Ontario Municipal Board ordered the township to pay Michael and Deborah Clark for their legal costs in obtaining approval for their business over a four year period.

The Clarks are owners of the Barrie Paintball operation located on 50 acres of land at the northwest corner of the 25th sideroad and tenth concession, north of of Ivy.

Ontario Municipal Board vice-chair Susan B. Campbell wrote in her decision that the township had tried to use the site plan approval process in order to prohibit the paintball operation which was a legal use of the property.

"Having heard the submissions of Counsel for all parties, on all the Motions, and having reviewed the voluminous materials filed on the Motions, which provide a good history of the site plan application, the Board finds that the conduct of the Township has been clearly unreasonable and vexatious. While the conduct of the Applicant was at times questionable, the Board finds that any such conduct was the direct result of the provocation of the Township's unreasonable conduct," she wrote.

"The subject property was, at all material times, zoned A2 Agricultural and OSC Open Space Conservation.

A "recreational use" is permitted on lands so zoned.

The Court found that paintball fell within the definition of "recreational use" as provided for in the by-law. Specifically, the Court found that paintball "is an activity that is a use similar in nature" to uses like golf courses. Further, the Court determined that the risk to participants, observers and passers-by associated with the paintball use is no greater than that associated with other permitted uses. "

Ms. Campbell ordered that the township " township pay the costs of the Applicant for the entire hearing, including the costs of the Motion for Costs and the Motion to Introduce New Evidence, which immediately preceded it, on a partial indemnity basis." She rejected a request for costs on a substantial indemnity basis.

Her decision in full can be read at http://tinyurl.com/2g4hrv.

In September, 2002, the Clarks filed a site plan application to establish a paintball operation on the site.

Although, there had been controversy over a paintball operation in the township on the eighth concession in 1985 which subsequently went out of business, various councils never passed a bylaw prohibiting the operation of paintball facilities.

In the subsequent years, the Clarks took the township to Ontario Municipal Board and the Superior Court of Ontario court over its failure to approve the site plan application.

The Superior Court of Justice decided that paintball was an acceptable recreation activity under the township's zoning bylaw.