Commercial Litigation and Dispute Resolution Blog

Like many British Columbians, I was surprised at the end of last month to read about a Chilliwack couple undertaking a Ghandi-inspired hunger strike against the Pickleball courts in their neighbourhood.^[1] Could the racket sport really be so disruptive that residents felt the need to engage in a public protest? As it turns out, yes.

Pickleball is one of the fastest growing sports in Canada, but many residential home owners say that having a court near their house is a major nuisance. Pickleball, which has been described as a cross between tennis, ping-pong, and badminton, grew 40% between 2019 and 2021, with an additional spike as people were spending more time outdoors during the Covid-19 Pandemic.^[2]

Despite its popularity, municipalities across Canada are finding themselves faced with increasing pressure from private citizens to close or move courts currently dedicated to the noisy sport. It is generally agreed that the perforated plastic ball used to play pickleball creates a much sharper, echoing noise than that of a tennis ball or badminton birdie being hit. Residents have described the noise as “incessant” and say it greatly impacts their ability to carry out their everyday lives, sleep, and enjoy their property. The President of Pickleball Canada, Karen Rust, has publically advised cities to build dedicated pickleball courts in areas away from residential homes to deter noise complaints.^[3] Considering that some courts in residential areas are open from 6am to 11pm during the summer months, it is certainly understandable that residents are not happy with the ongoing noise.

Unfortunately, options available to these disrupted residents can be limited. While most municipalities have noise bylaws intended to prevent this kind of disturbance, it may surprise some to learn that municipalities and local governments are not actually required to enforce their own bylaws. Courts in British Columbia have asserted that the power to enact and enforce bylaws is permissive rather than mandatory.^[4] Local government decisions regarding whether or not to enforce a bylaw are therefore not subject to judicial review except in “very unusual circumstances.”^[5]

Other Canadian jurisdictions do allow citizens to sue a municipality for failure to enforce bylaws. In Ontario, for example, a resident successfully sued the town of Niagra-on-the-lake for failure to enforce its own noise bylaw in relation to pickleball courts.^[6]

In British Columbia, the options for residents disturbed by pickleball noise are limited to directly petitioning their local government or starting a legal action for the tort of private nuisance. A number of municipalities across British Columbia have taken action in response to citizens’ complaints and petitions. In Victoria, pickleball players have been banned from certain parks and tennis courts due to noise complaints. City council in West Vancouver and Port Moody have voted to close pickleball courts and construct new ones farther away from residential areas following noise complaints.

For those residents living in municipalities unwilling to act when petitioned by concerned citizens, the only option for relief may be a legal action for the tort of private nuisance. To succeed on an action in nuisance, the plaintiff must prove that the defendants’ conduct interfered with the use and enjoyment of the plaintiff’s land and that this interference was unreasonable.^[7] In order to be an unreasonable interference, the nature of the acts complained of must be “substantial and beyond simply annoying or bothersome.”^[8]

British Columbia courts have consistently considered the following factors when assessing whether an alleged nuisance is actionable:

1. The nature of the act complained of;
2. The nature of the injuries suffered;
3. The character of the neighbourhood;
4. The frequency of the occurrence which causes the interference;
5. The duration of the alleged nuisance;
6. The utility of the defendant’s conduct; and
7. Other factors that could be of significance in special circumstances.^[9]

A well-known example of unreasonable noise being found to violate a resident’s right to enjoyment of their property comes from Suzuki v. Monroe.^[10] In that case, the noise from a central air conditioning unit producing 55 decibels of noise was considered a nuisance and the court placed restrictions on when the air conditioning system could be run. For reference, the average Pickleball court is believed to produce about 70 decibels and an average tennis court produces about 40 decibels.

There has not yet been a private action against pickleball courts in British Columbia but if local governments are not responsive to complaints from residents, it may only be a matter of time.

if you have any questions about the this blog, please contact Krystal Bernhardt or another member of the Litigation & Dispute Resolution Group.  

_{[1] Kyle Melnick, “Couple Goes on Hunger Strike Over Pickleball Noise”, online 2023. https://www.washingtonpost.com/nation/2023/07/26/pickleball-hunger-strike-noise-chilliwack-canada/}

_{[2] Juno DeMelo, “”Why is Pickleball so Popular?”, online: 2022. https://www.nytimes.com/2022/09/03/well/move/pickleball-popular-sport.html}

_{[3] Dirk Meissner, “Pickleball's growth raises a racket in Victoria”, online: 2022. https://www.cbc.ca/news/canada/british-columbia/pickleball-victoria-noise-complaints-1.6437623}

_{[4] Dusevic v. Columbia Shuswap (Regional District), 1989 CarswellBC 474.}

_{[5] Powell River City v. Sliwinski, 2011 BCSC 748, at para. 10.}

_{[6] Evan Saunders, “Niagra-on-the-Lake Ordered to Shut Down Pickleball Courts”, online: 2022. https://www.thoroldtoday.ca/local-news/court-orders-niagara-on-the-lake-to-shut-down-pickleball-courts-5485825}

_{[7] Royal Anne Hotel Co. v. Ashcroft, [1979] 2 W.W.R. 462 (B.C.C.A.).}

_{[8] Osler Developments Ltd. v. British Columbia, 2001 BCSC 129, at 217; also cited in Chisholm v. Shatzko, 2020 BCCRT 948.}

_{[9] Supra note 7.}

_{[10] Suzuki v. Monroe, 2009 BCSC 1403.}