Ontario court dismissed claim on volenti, ruling that even a defective sports injury waiver can support a voluntary assumption of risk defence
A slo-pitch player struck in the eye by a baseball had one clear argument: the sports injury waiver he signed did not cover league games. It failed. His personal injury claim still struck out. As decided by the Ontario Superior Court of Justice, the claim was dismissed on two separate grounds: no breach of occupiers’ liability and voluntary assumption of risk.
When a sports injury waiver actually holds up in court
In Kolsen v. The Corporation of the Town of New Tecumseth et al, 2026 ONSC 2729, Mark Kolsen signed a sports injury waiver each year from 2012 to 2019 to play in the Tottenham Oldtimers Slo-Pitch League. On May 6, 2019, during the first league game of the season, a baseball struck him in the eye.
The 2019 waiver covered only “tournaments,” and not “league games.” The defendants argued that the phrase “in consideration of being allowed to participate in any way” was broad enough to cover league play.
The court rejected this, applying two settled rules from the following cases:
- Snucins v. Conquest Tours (Toronto) Ltd. (Div. Ct.), 1990 CanLII 6967 (ON CTGD): ambiguity in a waiver is resolved against whoever drafted it, since “an exclusionary provision will be interpreted contra proferentem”
- Arksey v. Sky Zone Toronto, 2021 ONSC 4594: waivers must be read “contra proferentem, narrowly, carefully, and applied for their objectively determined meaning”
The waiver had a second flaw. It said nothing about the statutory duty of care under Occupiers’ Liability Act (OLA). Under s. 5(3), occupiers must actively bring any liability exclusion to a participant’s attention. This sports injury waiver did not.
While SPN later updated its sports injury waiver in 2022 to cover league play, the retroactive fixes cannot save a defective document.
Whether the duty under the law was breached
However, the OLA does not impose strict liability. In the case of Kerr v. Loblaws Inc., 2007 ONCA 371, the standard of care “requires neither perfection nor unrealistic or impractical precautions against known risk.”
The Town of New Tecumseth, as occupier of Keogh Park, admitted responsibility for the field’s lighting, but could not realign before May 6: the ground was too soft for heavy equipment to reach the 13.7-metre-tall poles. Adjustments were completed on June 27, 2019.
As the plaintiff called no expert evidence, the defence called a professional engineer, whose findings showed:
- the IES Lighting Guide (Illumination Engineering Society of North America) confirms baseballs can be lost in the path of a light and this “cannot be eliminated” even with correct placement
- the left-field light pole “generally matched the recommended placement”
- a direct throw, like the one on May 6, would not get lost in the lights
As such, the Town had acted reasonably.
Can volenti still bar a claim when the waiver fails
The third question: did Kolsen voluntarily assume the risk?
Volenti non fit injuria (no wrong is done to one who consents) is a complete bar to recovery. In Crocker v. Sundance Northwest Resorts Ltd, [1988] 1 SCR 1186, the Supreme Court of Canada confirmed the defence applies only where a plaintiff assumes both the physical and legal risk. Section 4(1) of the OLA codifies this principle.
In this case, the court found three decisive facts:
- Kolsen had seen other players lose the ball in the lights
- he had himself lost the ball in the lights on prior occasions
- his wife, Heather Stubbs, confirmed in cross-examination that he understood these risks
Two witnesses agreed that losing a ball in the lights is inherent to the game. The failed sports injury waiver, though useless contractually, put Kolsen on notice that baseball carries “significant risk of injury” and even “death.” That counted. The claim was dismissed.
Bookmark Canadian Lawyer’s Personal Injury page for more news, articles, and updates for Canadian legal professionals.
