Kolsen v The Corporation of the Town of New Tecumseth et al, 2026 ONSC 2729

Written By: Joseph Cescon, Partner, and Sara Ferro, Summer Student
9 Minute Read

Introduction

Recreational sports are an integral part of Canadian culture. At all ages, Canadians participate in sports to stay active, have fun, and release stress. It is important to remember that participation comes with safety risks with real legal ramifications. In a recent decision, Kolsen v The Corporation of the Town of New Tecumseth et al, 2026 ONSC 2729, a serious baseball injury presented a complex legal question: who is liable when a player gets hurt? Below, we summarize Justice Edwards’ analysis, explore the enforceability of waivers, and examine the concept of voluntary assumption of risk arising from participation in sports activities.

Facts

The Plaintiff, Mr. Kolsen, participated in the Tottenham Oldtimers Slo-Pitch League (the “League”). To participate each year, the Plaintiff was required to sign a waiver. In April 15^th, 2019, he did so by clicking on various boxes indicating he read and understood the contents of the waiver. Importantly, the waiver referred to “tournaments” rather than “league” games. On May 6^th, 2019, during the first league game, the Plaintiff was struck in the face with a baseball. It was described as a routine play. The Plaintiff maintains he kept his eye on the ball until a flash of light impaired his vision. Witnesses admitted to losing the ball in the field lights, but none experienced what the Plaintiff described. The Town of New Tecumseth (The Town), owner of the baseball field, admitted they were responsible for adjusting the field lights. However, they were unable to adjust the field lights prior to the May 6^th game because of the winter weather conditions and weight of the heavy equipment required to complete the job. The lights were finally adjusted on June 27^th, 2019. Despite the incident, the game continued. More than 50 of over 250 registered players provided feedback about the field lights, none of which testified during the trial or complained after June 27^th. In 2023, the League added “league play” to the waiver and expanded the language of the the waiver to include a statutory breach. The revised release was included in the Plaintiff’s evidence, to support his claim against the Defendants.

Issue

The first issue dealt with in this case was whether the waiver provided an absolute defence for any or all defendants. If it did not, whether there had been any breach of the Occupiers Liability Act (OLA). And if a breach was found, whether the Plaintiff voluntarily assumed the risk of injury when he played baseball that night.

The Plaintiff relied on the language of the waiver. His position was that the waiver only specified tournaments, and he was injured during a league game. Additionally, the Plaintiff argued that the waiver did not explicitly waive the statutory duty of care provided for in the OLA and that the waiver does not protect the Town from liability.

The Defendants argued that the inclusion of league games was implied in the language of “in consideration of being allowed to participate in any way.” They also argued that the waiver referred to “agents” which encompasses the Town and its employees.

Analysis

The Waiver

The Court began with the most basic principle, citing Snucins v Conquest Tours (Toronto) Ltd, 1990 CanLII 6967 (ON SC), that the onus is on the defendant to prove that the waiver applies before the claims of the Plaintiff can be excluded. The Court also relied on Arksey v Sky Zone Toronto, 2021 ONSC 4594, which requires waivers to be interpreted narrowly and construed against the drafter. In the case at bar, the language of the waiver precluded the Defendants from relying on the waiver. Strictly construed, the waiver covered an exclusion of liability for “tournaments,” not “league games.” Additionally, there was no mention of an exclusion of liability imposed by statute. Although the League made these changes to the waiver in 2023, the Court held that a waiver cannot be re-written to support the defendant’s view of how it should have applied. What matters is what was written at the time and the strict interpretation of the language used.

Determining an OLA Breach

There was no dispute that the Town was the owner and occupier of the baseball field. As a result, the Court had to determine the applicable standard of care and whether one was owed to the Plaintiff. The Court, citing Kerr v Loblaws Inc, 2007 ONCA 371, stated the applicable standard of care is one of reasonableness. The Plaintiff bore the onus to prove that the Town breached the standard of care, but he failed to call any evidence. The Town called one expert witness who conceded the following:

• Baseballs may get lost in the path of a light and this cannot be eliminated.
• In general, the light pole in left field was in the recommended location.
• A direct throw, as was the case here, would not have gotten lost in the lights.

The Court held that it was not unreasonable for the Town to defer alignment until the field conditions improved. Furthermore, there was no evidence that any player had been blinded by a “flash” prior to May 6^th, 2019. The Court ultimately found that it was reasonable for the Town to release the baseball field for play that night.

The Voluntary Assumption of Risk

Turning to the alternative question, the Court analyzed whether the Plaintiff assumed the risk of being hit by a baseball. The Court relied on Crocker v Sundance Northwest Resorts Ltd, [1988] 1 SCR 1186, which stated that when a plaintiff agrees to assume risk, they effectively absolve the defendant of all responsibility. Known in law as s volenti defence, and as seen in Car and General Insurance Corporation Limited v Seymour and Maloney, [1956] SCR 322, it only applies when the plaintiff has assumed both the physical and legal risk. In the case at bar, the following evidence supported the volenti defence:

• The Plaintiff knew there was a risk of injury playing the game.
• The Plaintiff had seen others injured lose the ball in the lights, and he had lost the ball in the lights on prior occasions.
• The Plaintiff’s wife agreed during cross-examination that her husband knew the risks involved when playing baseball, including losing the ball in the lights.
• Two witnesses agreed that losing a ball in the lights is a known risk of playing baseball.
• The waiver provided the Plaintiff with an understanding that playing baseball brings with it “significant risk of injury” and even “death.”

As a result, the Court concluded that the Defendants had made out the common law defence of volenti.

Discussion

This decision has practical implications for sports leagues, municipalities, and personal injury plaintiffs. First and foremost, the enforceability of a waiver will be primarily dependent on the precision of language. The language of the waiver must clearly reflect the exact intentions of its drafters, rather than include broad terms that leave room for interpretation.

Second, the standard of reasonableness is not perfection. The Court considered the entire context, such as the weather conditions, past practices, and prior injuries, when concluding it was reasonable for the Town to release the field to the League.

Third, expert evidence is important to establish a breach of the standard of care. The Plaintiffs failed to call any evidence, leaving the Court to rely on one expert who was called by the Defendant. Most notably, the expert witness testified that a direct throw, such as the one preceding the Plaintiff’s injury, would not have gotten lost in the lights. Had the Plaintiff found an expert to testify to the contrary, the outcome might have been different.

Finally, the volenti defence is a difficult defence to rebut, especially when a waiver is involved. Importantly, in the present case, the waiver sufficiently provided the Plaintiff with an understanding of the risk of the game. As such, the Plaintiff was deemed to have voluntarily assumed the risk of playing baseball that night.

Conclusion

For practitioners, this decision reinforces the importance of well-drafted waivers, expert evidence, and the voluntary risk players assume when they agree to play sports where the risks have been conveyed to participants.

If you or a loved one has been seriously injured while participating in a recreational sport, understanding your legal rights is essential. The experienced personal injury lawyers at McLeish Orlando LLP can assess your claim, explain your options, and help you pursue the compensation you deserve. Contact us today for a free consultation.