A legal pickle in (all the) courts

For some lighthearted, but still instructive patio reading during the final days of summer, a recent BC case illustrates the – sometimes counterintuitive – principle that consulting counsel early can save money later.

In the recent case of Gowing v Mayne Island Community Centre Society,¹ the BC Supreme Court waded into the controversial world of pickleball. For the uninitiated, pickleball – often promoted as “America’s fastest growing sport” – is a paddle sport in which players rally a hollow, perforated ball back and forth across a court to score points. The sport bears similarities to both tennis and ping pong, and is often played on modified tennis courts. Pickleball has become notorious in recent years for the incessant popping and thudding noises that accompany matches, resulting in a slew of neighbourhood complaints, angry editorials, legal challenges, and, in at least one notable local case, a hunger strike.² 

Background to litigation

The latest challenge to the sport played out on idyllic Mayne Island – just a few hours north of the home of pickleball, Bainbridge Island, WA. The case was brought by a group of tennis players known as the Mayne Island Tennis Association (MITA), chagrined at a new Mayne Island Community Centre Society (MICCS) policy granting pickleball players equal time to MITA at two local tennis courts (the courts). 

MICCS is a registered non-profit that owns the lands on which the courts were built, along with owning and operating the local community centre. MITA, an unincorporated entity with no legal status, was instrumental in fundraising for the courts in 2007,³ and continued to be very involved in their administration. MICCS and MITA worked together in apparent harmony for many years – until the incursion by Mayne Island’s pickleball players. 

In 2021, the Mayne Island Pickleball Club (MIPC) requested access to the courts; MICCS refused. A short time later, at the MICCS annual general meeting, three members of the MIPC were elected to the MICCS board. The following spring, MICCS created a “Courts Committee” to advise on usage of the courts, and shortly thereafter MICCS announced a new policy permitting pickleball. Under this policy, 21 hours per week was reserved for pickleball, and 21 hours per week was reserved for MITA (which, to that point, had 12 hours per week reserved). 

Unhappy with this change allowing pickleball, MITA brought the present legal challenge, alleging that its group was entitled to ownership and control of the courts. To this end, MITA raised a myriad of distinct legal arguments, including that: MICCS acted contrary to an oral agreement between MICCS and MITA; MICCS oppressed MITA; certain new members of the MICCS board were in a conflict of interest due to their stated interest in pickleball; MITA was entitled to set usage for the courts based on past custom; and MITA’s interest gave rise to proprietary estoppel. 

Many of these arguments were grounded in a 2007 agreement governing the relationship between MITA and MICCS. Under this agreement, MITA had the authority to set the courts’ usage policy, subject to approval from the MICCS board. At the hearing, MITA argued that the 2007 agreement was modified orally in 2008 to provide that, among other things, MITA was granted perpetual use of the courts (despite being on lands owned by MICCS), MITA had sole authority to set policies with relation to the courts, and the courts were only to be used for tennis. This arrangement was put into writing in 2022, after the pickleball controversy emerged.

Court decision

The judge rejected every MITA argument. He described the 2022 codification of the alleged oral agreement as “little more than a self-serving, aspirational expression of how MITA wished to maintain and exert control over the usage of the tennis courts.”⁴  

He also noted that the transfer of ownership sought by MITA would not only likely violate MICCS bylaws, but could also make MICCS ineligible for a property tax exemption and even risk its non-profit status more generally. Critically, MITA’s other arguments were also dismissed, largely on the basis that MITA was not a separate legal entity, and so not capable of being oppressed or of having its contracted rights violated (as it has no legal rights). With respect to the conflict of interest, the judge commented that “[t]hey were in no more a conflict than previous board members who preferred tennis.”⁵ 

As a takeaway, consult counsel early and often to avoid larger costs later – earlier legal advice to incorporate, document, and coordinate the agreement with bylaws would have been far less expensive than litigation. In this case, the already even division of access between the two constituencies and all-or-nothing stakes provided little inspiration for a judicial rescue from the outcome of democratic processes.

If readers find themselves in a pickle on questions of non-profit societies, corporate structure, or administrative law, contact any of the lawyers listed below.