Decision released: pickleball courts remain closed

This story has been updated with a statement from town CAO Marnie Cluckie

A court decision released Wednesday morning on a noise bylaw infraction has the Virgil pickleball courts locked down for two years.

John Hindle, president of the Niagara-on-the-Lake Pickleball Club was at the Welland court house to hear the decision, and said the club was shocked by the result.

The decision also includes a fine of $1,000 for the town and the club — both were charged with an infraction of the town’s noise bylaw by a resident who lives in the condominiums bordering the the Virgil Sports Park, close to where the town courts are located.

An email received from the town, attributed to CAO Marnie Cluckie, says "The town has not yet received the written decision of the court. I can confirm that both the town and the pickleball club were convicted. The Court imposed a $1000 fine on the town and a $1000 fine on the pickleball club. A notice will be sent to the town from the court detailing the fine."

"Additionally," Cluckie says, 'the town and pickleball club were placed on a probation order for two years not to commit a further breach of the noise bylaw; the justice of the peace limited the extent of the probation order to apply only to pickleball at Virgil Sports Park. The Town remains committed to exploring ways to mitigate noise at the pickleball courts. Legal counsel and town staff will be discussing the next steps with town council at an upcoming meeting."

Asked for clarification about whether the probation order closes down the courts for two years, or whether mitigating noise under the terms of the new noise bylaw could allow it to reopen, another emailed response explains a bylaw to amend the noise bylaw. will be before council for ratification on Monday, June 20. Until then, and dependent on council’s decision, the noise bylaw remains unchanged. Pickleball itself is not banned. The specific order coming from the courts states that the town and pickleball club are placed on a probation order for two years not to commit a further breach of the noise bylaw. For now, the pickleball court remains closed until further notice while the town discusses its next steps and continues to explore ways to mitigate noise at the pickleball courts.

The bylaw at the time of the charge said “no person shall make, cause or permit sound or vibration at any time, which is likely to disturb the quiet, peace, rest, enjoyment, comfort or convenience of the inhabitants of the town.”

The charge goes back to October, 2020, when due to the pandemic the club wasn’t playing pickleball.

At the time the noise bylaw infraction was heard in court last April, pickleball players and NOTL residents expressed outrage on social media that the charge was the result of a sport being played in a sports park. Shortly after, the town tried to change its bylaw by allowing noise from recreational activities on town-owned property from 7 a.m. to 11 p.m., but failed to get a majority vote. Some councillors said the timing seemed inappropriate given the recent hearing, with a decision not expected before June.

Councillors tried again to change it recently, this time approving a change in the bylaw to allow “any emission of sound or vibration” on town-owned property during those times, from sporting or recreational activities, as approved by the director of operations or delegate of the town. That will be ratified this Monday.

After listening to more than two hours of a Zoom meeting to hear the decision of Justice of the Peace Wednesday, Stephanie Howcroft, an active member of the NOTL Pickleball Club, said “there a lot of sad, frustrated and really disappointed people” who were hoping for a decision in their favour that would allow the Virgil courts to finally open for the season.

Howcroftsaid the justice of the peace seemed more concerned about stopping the noise so it wouldn't bother neighbours than about the fine.

She said she believes, after listening to the decision, that it's clear the town erred in not exempting sports and recreational activities in parks when it first passed its noise bylaw, resulting in the court decision that is keeping the pickleball court closed. 

In 2020, Hindle asked members to be considerate of neighbours whose homes border the park. In 2021, when the courts reopened for the season, the hours of play were reduced to 8 a.m. to 10 p.m. They had been starting an hour earlier and ending an hour later, but times were changed to lessen the noise impact.

Howcroft said players didn't usually start until 8:30 a.m. out of respect for the neighbours, usually stopping before noon when it got too hot to play.

There was some discussion at a council meeting in May 2021 about reducing the hours even further, closing down at 9 p.m., but councillors decided not to.

Players come from around the region to play in NOTL — while other municipalities adapt tennis courts for pickleball, in 2019 NOTL transformed a former tennis court, and players travel from other municipalities because they prefer the pickleball surface, net, and windscreens, Howcroft says. Although the town paid for the original work, the club has invested a lot of money in it since, including paying for the windscreens and a shade shelter. The lawyer representing the club argued against the $1,000 fine, which is half of what the club has in its bank account, and will be a hardship for them, she said, but the decision stood.

When the town decided not to open the outdoor courts last spring until the court case was settled, Howcroft chose to continue playing daily at the community centre, paying $5 each time.

There are about 250 club members, she says, and about 100 who are active, regular players.

The outdoor courts are not only nicer in the good weather, but free. And although the town has created a court inside the Centennial Arena, for club members and the public to use at no charge, not everyone is happy playing on the hard floor.

She has played there a couple of times, and didn’t find it too bad, but some members complain the cement floor is hard on their knees, hips and backs, and find it slippery, maybe from sweat, she says, and fear falling. At least one person has fallen and hurt herself — the game is not quite as gentle as it’s portrayed, and players can twist, turn and sometimes fall as they play.

She and other club members are hoping there can still be some compromise reached too allow a sooner club opening, but Howcroft says she’s not sure that could still be an option.

Hindle said the club “will be looking into what subsequent actions can be taken.”

Speaking for himself, and not on behalf of the club, he said, “my level of frustration and sadness is severely deep, that so many people's lives, their physical and emotional well-being, their search for a healthy active lifestyle, will be so negatively impacted by this decision.”