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May. 25, 2022 | Wednesday
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Neighbour claims pickleball noise is 'torture,' takes town and club to court
A father and son enjoy some pickleball at the Centennial Sports Park. (File)

Move over Hells Angels, there’s a new breed of troublemaker in Niagara-on-the-Lake.

And they’re fanatics about pickleball.

The Niagara-on-the-Lake Pickleball club is at the centre of a legal dispute between the town and resident Oana Scafesi, who is claiming the noise from the pickleball courts at the Centennial Sports Park in Virgil has made her NOTL existence unbearable.

Scafesi has filed charges against the town and the club in provincial offences court for violation of the town’s own noise bylaw, specifically section three, which states: “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.”

“For the last three years I have been tortured by a high noise produced by the pickleball players,” Scafesi testified during a trial on the matter Wednesday morning in Welland court.

“This affected my health, affected my work performance and affected, altogether, my life.”

Scafesi said her goal with the case is to “have my life back” and said she believes the town should move the courts or relocate them.

Justice of the Peace Mary Shelley reserved judgment and said she will make her ruling in the case on June 15.

Scafesi said she moved to her home in Lambert’s Walk, a townhouse community directly adjacent to the sports park, in 2012 so she could “have a peaceful and quiet life, as any resident deserves and as any hard-working person deserves.”

The park had long been home to tennis courts which in 2019 were transitioned into pickleball courts.

The pickleball club has been using the courts ever since, its membership quickly growing to more than 200 people.

"The approximately 240 pickleball club members, understandably, have a wide variety of opinions on this situation, ranging from head-shaking incredulousness to outrage," club president John Hindle said in an email to The Lake Report.

In response to the court case, which began more than a year ago, the town recently closed the outdoor pickleball courts and opened six courts inside Centennial Arena as replacements.

“The temporary relocation of the pickleball courts is in response to identified noise concerns associated with the use of the outdoor pickleball courts,” says an email from the town to the club.

Scafesi said the sound from the tennis courts and other park activities never bothered her and her problems began with the onset and growth of pickleball as a popular community sport.

The noise produced by the racquets and balls has greatly affected her mental health to the point where she can hear the noise even when nobody is playing, she told the court.

“It's a serious thing when you hear things which are not real,” Scafesi said.

“Every single morning when I wake up I was thinking about another torture day. I have been tortured every single day.”

“My life is not peaceful. It’s a tortured life.”

Scafesi is represented by J. Patrick Maloney during the trial, a lawyer with Sullivan & Mahoney in St. Catharines. She was cross-examined by Terrence Hill, a lawyer representing the town.

Maloney also called witness Todd Busch, an engineer specializing in acoustic sound for more than 25 years. 

Busch visited Scafesi’s property in October 2020 and took sound decibel recordings to determine the noise level of the pickleball players.

Busch said the noise level of the sound of the pickleball striking a racquet measured 77 decibels on Scafesi’s balcony.

Busch utilized a provincial document, the Environmental Noise Guideline – Stationary and Transportation Sources (NPC-300), to explain his findings.

Under this document, an acceptable decibel volume on a residential property is around 50. The sound of the pickleball exceeded that by 27 decibels, Busch said.

Every extra 10 decibels equates to a doubling in perceived loudness, meaning the extra 27 decibels are nearly eight times the acceptable volume under the noise guideline, Busch said.

Hill questioned Busch's use of the NPC-300 as an authoritative document in this case.

He cited a section that states what noise sources are exempt from the NPC-300, specifically “noise resulting from gathering of people at facilities such as restaurants, fairs and parks.”

Busch agreed that this exemption creates a space to doubt whether the sports park facility should be held to the standards outlined in the NPC-300.

Further, Hill argued that Busch’s report states he assumed the NPC-300 to be applicable in this situation and had no definitive explanation as to whether it was. 

Busch agreed that he based his report on the assumption of applicability but defended his decision to use the document.

“I think the fact that there's a regulation that's effective widely in Ontario that attempts to quantify and provide a more black-and-white type of dividing line between what might be considered generally acceptable and generally unacceptable is valuable,” Busch said.

“There’s a clear violation. That’s an intrusive noise.”

Ian Langden, lawyer representing the pickleball club, also argued against the validity of Busch’s sound recordings.

The recordings were allegedly made on Oct. 24, 2020. Langden pointed out that the club did not operate during that period and was closed down due to COVID-19, meaning anyone using the court was merely a member of the public.

Maloney argued the club has stewardship of the courts since it advertises the code needed to unlock the gate and contributed financially to the installation of a lock on the court and paid for windscreens. 

Hindle testified that the code was widely accessible and known throughout the town and that the club was always welcoming of any members of the public who wished to use the courts.

Hill defended the town by claiming that allowing pickleball to take place should not be construed with allowing violations of the noise bylaw.

“Permitting an activity does not equate to permission to emit an excessive noise. That in essence is the position of the defendant,” Hill said in his closing submission.

He also argued that making a conviction based on the fact that one individual does not like a sound is a slippery slope.

“I hate whistles blown by referees, it disturbs me. Is that enough to get a conviction? I hate those parents that yell for their children. There are soccer games out there every night, seven days a week during the spring. It just drives me crazy. Is that enough to get it?” Hill asked the court.

“So we have to be careful about the slippery slope that we go on when we're talking about regulating recreational and sporting activities.”

Maloney countered this point by citing the frequency of the noise of the pickleball racquets striking a ball compared to the sound of whistles during a soccer game.

“You don't hear the referee's whistle 43 times in two minutes,” Maloney said, citing evidence from Busch.

Maloney also looked at the wording of the town’s bylaw to support Scafesi’s case, noting section three states a noise is against the bylaw if it is merely “likely” to disturb the peace of NOTL residents.

“ ‘Likely’ is the subjective test, according to the bylaw,” he said, claiming the lack of a quantifiable sound level in the bylaw leaves it open to legal interpretation.

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