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

BARRIE COURT FILE NO.: CV-21-00000364-0000

DATE: 20260507

BETWEEN:

Mark Kolsen also known as Mark Anthony Kolsen

Plaintiff

– and –

The Corporation of the Town of New Tecumseth also known as The Town of New Tecumseth, Slo-Pitch National Softball Inc. also known as Slo-Pitch National Inc. operating as Member Leagues also known as Tottenham Oldtimers Slo-Pitch League also known as Slo-Pitch National Inc. and Member Leagues also known as Slo-Pitch National and Thomas Rigatti

Defendants

Robert H. Littlejohn and Ryan J. Hurst, for the Plaintiff

Andrea Trozzo, for the Defendants

HEARD: September 17, 22, 23 and 24, 2025

1Hockey, baseball and many other sports enjoyed by Canadians, while providing for a healthy and competitive atmosphere, can also be inherently dangerous. Adults of all ages enjoy these types of sports long after their childhood and well into their adulthood. Recreational sports are a fundamental part of the lifestyle of many Canadians. Unfortunately, even in recreational sport, injuries do happen. The trial of this matter dealt with who might be liable for an unfortunate incident in which the plaintiff was struck in the eye by a baseball while playing in an adult recreational slow pitch league. The issues addressed by this court include issues with respect to a waiver; the Occupiers Liability Act (the OLA); and a defence based on the voluntary assumption of risk assumed while playing in an adult recreational slow pitch league.

The Facts

2Mr. Kolsen is an experienced softball player who has played recreational softball dating back to the 1970s. He played in the Alliston Slo-Pitch League between 2007 and 2014. He has also participated in the Tottenham Oldtimers Slo-Pitch League (the “League”) between 2009 and 2019.

3As part of the process for registering in the League all players were required to sign a waiver. Mr. Kolsen executed an electronic version of the waiver annually between 2012 and 2019. The waiver which is at issue in this claim was signed by Mr. Kolsen on April 15, 2019 utilizing his home computer and clicking on various boxes on the waiver indicating that he had read and understood the conditions of the waiver. At trial, Mr. Kolsen testified that he “glanced” at the waiver but acknowledged that he clicked on the various boxes reflecting that he had read and understood the waiver.

4On May 1, 2019, the captain of Mr. Kolsen’s slow pitch team sent an email to Mr. Kolsen and all of the members of the team advising them that “each registered player must complete the SPN waiver and accept the terms, including acknowledging risk before they are permitted on the field of play.” Mr. Kolsen admits that he received this email.

5It is important to note that the waiver signed by the plaintiff in 2019 relates to “tournaments”. The game in which the plaintiff was injured on May 6, 2019 was a “league” game. It was not a “tournament” game.

6As part of the evidence, the plaintiff tendered a new form of waiver which Slo-Pitch National Softball Inc. (SPN) began using in 2023. The relevant portions of that waiver are reproduced in Appendix B below. It is important to note that the wording of the 2023 waiver has changed such that it refers to “league play” as well as “tournaments”. The significance of this change will be addressed later in these reasons. As well, the 2023 waiver provides for a release relating to injury caused as a result of the breach of “any statutory breach of care”; wording not found in the waiver signed by the Plaintiff.

7The incident where the plaintiff was struck by a baseball occurred on May 6, 2019. I will refer to this as the incident. The game was scheduled to begin at 8:15 p.m. The location where the incident occurred was at the Keogh Park (the “baseball field”). The Town of New Tecumseth (the “Town”) was responsible for the baseball field.

8The Town admits that it was responsible for the lighting at the baseball field which included maintenance of the lights. Neither SPN nor the Tottenham Oldtimers were responsible for the lighting.

9It is not disputed that Canadian winter conditions could affect the adjustment of the lighting at the baseball field. The baseball field was released to the Tottenham Oldtimers on May 6, 2019, which is the day of the incident. No adjustments were made to the lighting prior to the baseball field being released by the Town. Any adjustments that were needed to the lighting could only be done once the ground had firmed up allowing for heavy equipment that would be necessary to reach the lighting in the outfield. Adjustments were, in fact, made to the lights in late June 2019.

10Mr. Kolsen participated in a warm-up prior to the game starting. The warm-up consisted of him throwing a baseball between himself and the second baseman. Mr. Kolsen was playing first base. Neither the first baseman nor the second baseman would have their foot on the base during the warm-up. Rather, both were in the general vicinity of the base pad. The warm-ups were uneventful and there were no visibility problems as it relates to the lighting.

11Mr. Kolsen was injured in the first play of the season when a baseball was hit by a member of the opposition team. The ball was fielded by the second baseman who then threw the ball to Mr. Kolsen who was playing first base. It was described as a routine play. The throw from the second baseman to Mr. Kolsen was thrown in a direct manner as opposed to an “arching” manner. Mr. Kolsen maintains he never took his eye off the ball. As the ball was coming towards him, he described seeing a “flash” of light as a result of which he saw nothing. He was then struck by the baseball in his eye. He stated that he simply saw a “flash”.

12Mr. Kolsen had his foot on first base. In his affidavit which was filed as his evidence in-chief he stated,

I was watching the ball and lining up to catch it, I was blinded by the field lighting behind Thomas (Rigatti) and lost sight of the ball. Before I was able to react the ball struck the right side of my face.

13Mr. Kolsen described the play from second base as a “routine play”. He stated in his affidavit that Mr. Rigatti had thrown the ball in a manner that he described as “hard, fast, direct throw”.

14In his affidavit at paragraph 83, Mr. Kolsen stated

The field lighting behind Thomas (Rigatti) appeared as a bright white flash, like the flash of a camera. The white flash lasted until I was struck in the face. There was not enough time to react to avoid being struck by the ball.

15Mr. Kolsen acknowledges that he had seen other players injured playing recreational and oldtimers baseball during the course of his career. He acknowledged that one of the risks of playing baseball is being hit by the baseball.

16Gerard Traverse was playing first base for the opposing team that Mr. Kolsen was playing against. Mr. Traverse, at the request of Mr. Kolsen, prepared an email dated January 7, 2020 in which he stated that while playing first base on May 6, 2019 he had difficulty seeing the ball being thrown from shortstop and second base. He indicated that on one occasion he had turned his back and had to duck to avoid being hit in the face.

17In cross-examination, Mr. Traverse was asked whether he had seen any flash from the lights that had caused him to lose sight of the ball. He testified that he did not see a flash. He simply lost the ball in the lights.

18At the completion of Mr. Traverse’s evidence, the court asked him whether or not there was a risk in playing baseball that the ball could become lost in the lights. He confirmed this was a risk and that despite the problems he had on the evening of May 6, 2019, he continued to play and never made any complaint about the lighting.

19Mr. Kevin Cavalier was called as a witness. He was not playing in the game but rather watched the game. Mr. Cavalier’s evidence reflects that he saw the ball being thrown to Mr. Kolsen and that Mr. Kolsen did not catch the ball. He knew Mr. Kolsen to be a good baseball player who was experienced and had a good knowledge of the game. He confirmed in cross-examination that as a good baseball player, Mr. Kolsen would understand the risks of playing baseball which includes the possibility of missing a baseball and getting injured. He confirmed that the throw from the second baseman to Mr. Kolsen was a direct throw and on target. It was, in essence, a routine play. Mr. Cavalier confirmed that he had played at the baseball park as an outfielder and that there had been times there were problems with the lighting. He further confirmed that there is always a risk that a ball will be lost in the lighting and that one has to be prepared for this eventuality.

20While other witnesses who testified with respect to the incident made mention of the lighting and how the ball could be lost in the lighting, no one present on the field observed a “bright white flash”.

21Mr. Douglas Dwyer was, at the time of the incident, in his fourth season as the president of the League. He was at the game where Mr. Kolsen was injured. Mr. Dwyer, in his affidavit filed as his evidence in-chief, stated that prior to the game on May 6, 2019, none of the players, league officials or umpires raised any concerns with respect to the lighting at the field. Mr. Dwyer also confirmed in his affidavit that, after Mr. Kolsen’s injury, the game continued without anyone complaining about problems with the lighting.

22Mr. Dwyer states in his affidavit that he emailed Dan Murnaghan who was an official with the Town. In his email of May 8, 2019, inquiries were made by Mr. Dwyer with respect to whether or not any adjustments had been made to the lighting at the field. Mr. Dwyer’s inquiry was forwarded to a Jacob Perry who was the senior parks operator for the Town who indicated that the field was not yet dry enough to adjust the lights. The adjustments did not take place until June 27, 2019.

23On June 27, 2019, Mr. Dwyer sent an email to Mr. Kolsen updating him with respect to the status of the lights at the baseball field. In his email he states,

The town finally approved putting heavy equipment on the diamonds and did adjustments to the lights today. I wasn’t able to be there because I was pretending to work while running a bald league in stealth mode. But Paul Piellusch was working from home today and was able to attend and put forward the league concerns. Paul related the following:

Flyballs to right are passed through the lights behind the backstop

Left field is substantially darker than any other part of the park

Throws from third are impacted by the lights behind third-base

Throws from behind second are impacted by the lights in left centre.

24Mr. Dwyer was cross-examined with respect to the lighting at the park and whether or not other players had complained about the lighting. In part, this arose as a result of the plaintiff’s email to Mr. Dwyer dated May 8, 2019 in which he asked whether anything had been done differently with respect to the lights. In his email to Mr. Dwyer, the plaintiff on May 8 indicated that he had spoken with Mr. Traverse who had complained about the lighting during the inning prior to Mr. Kolsen’s injury when Mr. Traverse had told him he had lost the ball as well when it was thrown from second base to first base.

25In his cross-examination, Mr. Dwyer testified that he had received feedback from more than 50 players outlining concerns with respect to the lights at the baseball field. The total number of players registered in the league were 205. None of these 50 players were called to testify about any problems with the lighting.

The Waiver

26I intend to deal first with the issue of whether the waiver provides an absolute defence to any or all of the defendants. If the waiver does not provide an absolute defence then I will address whether there has been any breach of the OLA. If there has been a breach of the duty of care owed to the Plaintiff under the OLA, I will then deal with the issue of whether the Plaintiff voluntarily assumed the risk of injury when he played baseball on May 6, 2019.

27It is the Plaintiff’s position that the waiver does not absolve the defendants of liability largely because the waiver signed by the Plaintiff only applies to “tournaments”. The game in which the plaintiff was injured was a “league” game. As well, the Plaintiff argues that the waiver did not purport to waive the statutory duty of care provided for in the “OLA. It is also argued that the waiver does not refer to the Town and as such the waiver does not provide protection to the Town for any liability it might have to the Plaintiff.

28The Defendants argue that the waiver is a complete defence to all of the Plaintiff’s claims. It is argued by the defence that where the waiver refers to “tournaments” it included “league” play as the plaintiff signed the waiver “in consideration of being allowed to participate in any way”. It is argued the court can construe the words “participate in any way” to include “league play”. As it relates to the waiver applying to any liability of the Town, it is argued that the waiver refers to “agents” which it is argued would encompass the Town and its employees.

29The waiver that the Plaintiff signed is found at Appendix A. I have emphasized the word “tournament”. The waiver that was created after the Plaintiff’s injury is reproduced as Appendix B to these reasons. This waiver encompasses “league play” and “any breach of a statutory duty. These words are emphasized as part of these reasons.

Law and Analysis – Does the Waiver Exclude Liability

30There are fundamental principles that must be applied before it can be said the waiver excludes liability in this case. The first and most basic principle is that the onus is on the defence to prove that the waiver applies to exclude the claims of the Plaintiff. In Snucins v. Conquest Tours (Toronto) Ltd. (Div. Ct.) the Divisional Court stated:

I accept that others might read it differently. They might interpret it to be the untrammelled disclaimer against every failure that Conquest says it is. But the mere fact that the words are open to more than one interpretation would render them ineffectual. It is well established that the onus of proving an exemption lies on one who claims it and that an ambiguous disclaimer is ineffective. As Trainor J. said in Cathcart (supra, at p. 191 O.R.), an exclusionary provision will be interpreted contra proferentem and any ambiguity will be held against the party asserting it.

31The law regarding the circumstances of when a waiver may or may not exclude liability was recently reviewed by Myers J in Arksey v. Sky Zone Toronto, 2021 ONSC 4594. At para 3 of his Reasons, he stated:

I do not understand the law to be that waivers of liability are unenforceable or illegal. Nor are they to be circumvented by artful interpretation. Rather, they are to be construed contra proferentem, narrowly, carefully, and applied for their objectively determined meaning.

32If the court does find an ambiguity in a release or waiver, it is not the role of the Court to fix that ambiguity in an effort to exclude liability in favour of the party which drafted the waiver. In Gallant v. Fanshawe College of Applied Arts and Technology, Arrell J at para 30 stated:

30This court concludes that the waiver is ambiguous because of the missing words such as “for any” and “negligence” or “liability” or “howsoever caused”. This court agrees that words must be inserted into this waiver to make it understandable and that is not the role of the court.

33As it relates to whether or not a waiver will exclude claims for negligence it is well accepted that the clearest of language is required if a party wants to absolve themselves for their own negligence. It is argued in this case that the waiver at issue did not in any way bring to the attention of the Plaintiff or other slow pitch players that the waiver purported to exclude liability under s. 3 (1) of the OLA. Where a defendant relies upon the limitation of liability set forth in a waiver, s. 5(3) of the OLA states “the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed.”

34In Mr. Kolsen’s case, the waiver makes no mention of the statutory duty of care reflected in the OLA. If the statutory duty of care is not brought to the attention of the Plaintiff it is difficult to see how a waiver can exclude a liability of which the Plaintiff has not been made aware. The words of the Court of Appeal in Best v. Port Hope Golf & Country Club, 2008 ONCA 26 at para 2 are of equal application in Mr. Kolsen’s case:

2This was an unusual case. The plaintiff did not pay for the ticket and his evidence was that he did not recall receiving it. He also testified that he had never read the ticket on the many prior occasions he had played at this golf course and it had never been brought to his attention on those earlier occasions. There was no other evidence, such as signage, that the defendant brought the exclusion of liability to the plaintiff’s attention on this particular occasion. In those circumstances, the appellant was not entitled to rely on the exclusion of liability on the ticket.

35As it relates to the language of the waiver it is clear that the flaws in the waiver as it might apply to Mr. Kolsen have now been remedied. In 2022, Slo-Pitch National changed the wording of the waiver from participation in Slow Pitch “Tournaments” to participation in Slo Pitch “activities, programs, tournaments, or league play …” (emphasis added). The waiver that was changed in 2022 also includes wording that purports to exclude liability “including but not limited to, negligence, gross negligence …breach of contract or breach of any statutory duty of care…” (emphasis added).

36Counsel for the defendants argues the waiver should exclude all liability for what happened on May 6, 2019. I have no doubt that the Plaintiff was well aware of the contents of the Waiver. He had executed a waiver with the Tottenham Oldtimers every year between 2009 and 2019. He had executed the waiver by electronic means every year between 2012 and 2019. While his evidence at trial was that he simply “glanced” at the waiver, Mr. Kolsen had every opportunity to read the contents of the waiver before “clicking” on the various boxes in the waiver. By clicking on the various boxes he acknowledged that he had read and understood the terms of the waiver. Most significantly, Mr. Kolsen knew that he had to sign and return the waiver before he could set foot on the baseball diamond. This was made clear in an email from the captain of his team that the Plaintiff had received before the start of the baseball.

37The waiver makes it crystal clear that someone signing the waiver knew that the game of oldtimers slow pitch baseball entailed the risk of significant injury from a game that, in of itself, is potentially dangerous. Mr. Kolsen, in his own trial evidence, acknowledged that one of the risks of playing baseball is being hit by a baseball – something he had seen happen. But the question still remains does the waiver apply to the League game that was played on May 6, 2019. The waiver must be strictly construed and any ambiguity resolved against the drafter of the waiver i.e., resolved against the defendants that seek to assert the exclusion of liability.

38The waiver as strictly construed covers an exclusion of liability for Slo Pitch “tournaments”. The game that was played on May 6, 2019 was the start of “League” play. Slo Pitch chose the wording in the waiver – wording that was changed in 2022. The waiver cannot be re-written now in a manner consistent with the defendant’s view of how it should have applied to “league” play. The waiver also failed to exclude liability imposed by statute. The waiver does not provide the defendants with the defence they seek to assert.

The Interplay between the Occupiers Liability Act and The Voluntary Assumption of Risk

39It is well understood that the standard of care under the OLA and the common law of negligence is one and the same: it is to protect others from an objectively unreasonable risk of harm. An occupier must be seen to have taken reasonable care in all the circumstances to see that someone entering onto the premises of the occupier is reasonably safe while using the premises.

40The relevant sections of the OLA as it relates to the Plaintiff’s claims are set forth below:

“3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty. R.S.O. 1990, c. O.2, s. 3.

Risks willingly assumed

4 (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property. R.S.O. 1990, c. O.2, s. 4 (1).” (emphasis added)

41The OLA does not create a presumption of negligence. The Plaintiff has the onus of proving, on a balance of probabilities, that the owner/occupier of the premises was negligent. As such, Mr. Kolsen must prove:

(a) The Defendants are occupiers of the property where the injury suffered by the plaintiff occurred;

(b) The Defendants breached the duty of care owed to Mr. Kolsen;

(d) Mr. Kolsen suffered an injury.

42There is no dispute in the evidence that the Town is the owner and occupier of Keogh Park and the baseball field. There is no dispute, as the owner and occupier, the Town would be responsible for the maintenance of the baseball field which would include the lights. Slo-Pitch is not an occupier of Keogh Park as defined at Section 1 of the OLA. There is no dispute the Plaintiff suffered a serious injury to his eye.

43Section 3(1) of the OLA does not impose strict liability on an occupier. Rather s 3 (1) provides that an occupier of a premise owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises are reasonably safe. The court must consider whether in all the circumstances the Town took reasonable care in the circumstances to make the baseball field a place where it was safe to play baseball at night under the lights on May 6, 2019.

44The obligations of an owner/occupier are not so stringent as to raise it to the standard of an insurer – see Sores v. Premier Fitness Clubs, 2011 ONSC 2220 at para 42. In fulfilling its duty the Town is not expected to guard against every conceivable accident that might happen. The Town’s obligation as it relates to the baseball field was to exercise care against dangers that were “sufficiently probable to be included in the category of contingencies normally to be foreseen” – see Alchinowicz v. Schram at para 13. The applicable standard of care is one of reasonableness which the Court of Appeal described in Kerr v. Loblaws Inc. 2007 ONCA 371 at para 19, “requires neither perfection nor unrealistic or impractical precautions against known risk”.

45Fundamentally, the Town does not have a legal liability to guarantee the safety of baseball players playing under the lights from all conceivable dangers. The Town is not automatically liable simply because Mr. Kolsen was at Keogh Park when he sustained his injuries.

46In his evidence, Mr. McCague, the Supervisor of Parks for the Town, acknowledged that the lighting at the baseball field needed to be inspected and that, as a result of the snow and ice brought on by winter conditions, the lighting might need to be aligned in the spring. However, because heavy equipment was needed to access the lighting, this kind of maintenance was not possible until later in the spring when the ground firmed up. As such the lights were not maintained and any realignment did not happen prior to the field being released to the League on May 6, 2019.

47The only expert evidence in this case as it related to the lighting at the field on May 6, 2019 came from the defence. Mr. Dewan Karim is a professional engineer. He conducted a site assessment at the park on May 8, 2024. He was qualified as an expert in safety assessment. The Plaintiff called no expert evidence on the standard of care as it relates to the lighting at the field. One of the most significant parts of Mr. Karim’s evidence is contained in his report and his viva voce evidence when he acknowledged that the IES Lighting Guide recognizes that baseballs may be lost from sight if they travel into the path of a light and that this cannot be eliminated (my emphasis) even with the proper placement of light poles and with the recommended horizontal illuminance of the baseball field.

48What Mr. Karim was referring to when he referenced the IES Lighting Guide (the “Guide”) is a document developed by the American National Standards Institute and the Illumination Engineering Society of North America which provides guidelines and recommended practices to assist in the design of lighting of sports and recreational facilities. The Guide was published in 2020 i.e., after the injury to Mr. Kolsen. It categorizes playing fields into four categories ranging from what most people would associate with a professional baseball stadium to a Category 4 playing field that would accommodate 2,000 spectators. The Keogh playing field would fall even below a Category 4 field. Nonetheless the IES Lighting Guide does help inform the standard of care expected in the lighting of the Keogh field on May 6, 2019.

49Counsel for the plaintiff emphasizes that on May 6, 2019, the lights had not been adjusted prior to the field being released to the League. The lights were not adjusted until well into June 2019 because the Town could not get the heavy equipment needed to adjust the lights onto the field due to the spring conditions. In cross examination, counsel for the Plaintiff elicited from Mr. Karim that establishing the proper location of lighting poles and the aiming of the lights was fundamental to good player visibility of the baseball when it was in the air. Mr. Karim also conceded that lights should not be aimed in common sightlines – as, for example, a ball being thrown towards the first baseman. Mr. Karim also agreed that lights need to be monitored and aimed correctly.

50Mr. Karim in re-examination testified that glare zones do occur on a baseball field played under the lights. Significantly, Mr. Karim testified he would not expect a straight throw to be lost in a glare zone. If the ball was thrown in an arc, Mr. Karim suggested that type of throw could result in the ball being lost in a glare zone. In the case of the throw to first base from the second baseman, Mr. Kolsen testified that the ball was thrown to him in a manner he described as “hard, fast, and direct”. The ball was thrown in a direct manner and not as an “arching” throw. This stands to reason as the throw was from second base to first base. A direct throw, as was the case here, would not be lost in the lights positioned in the left portion of the baseball field.

51The Plaintiff chose to call no evidence on the standard of care expected of the Town and the other defendants. The only evidence on the standard of care came from Mr. Karim who placed heavy reliance on the Guide – a Guide that did not even exist in 2019. Nonetheless, the Guide does help inform the standard of care that would apply to the baseball field where the Plaintiff was injured. While Mr. Karim could not testify to the alignment of the lights as it existed in 2019, he could testify to the location of the lighting. For a baseball field accommodating a minimal number of spectators and used primarily for recreational amateur league play, Mr. Karim testified that the placement of the light pole in left field was generally in conformity with the recommendations set forth in the Guide.

52The lights at the baseball field as measured by Dewan Karim are 13.7 metres tall. Mr. Karim testified that the general standard for light poles is in the range of 9 – 13 metres. Mr. Karim further testified that the height of a light pole was dependent on the class of field in play.

53As it relates to the placement of the light pole in left field, the Guide recommends that this light pole be offset to the right of the line of sight of the first baseman facing second base. This recommendation takes into account the possibility that lighting from the pole in left field could interfere with the ability of the first baseman to safely field a ball being thrown to him or her by the second baseman. The light pole in left field at the baseball field where the Plaintiff was injured “generally matched the recommended placement” referenced in the Guide.

54As the evidence of Mr. Karim was the only expert evidence on the standard of care regarding the lighting at the baseball field it is particularly significant that counsel for the Plaintiff did not object to the use of the Guide in the opinions that Mr. Karim offered the court. In many respects, counsel for the Plaintiff relied on much of Mr. Karim’s evidence in support of his position that the Town failed to ensure the safety of the Plaintiff in its failure to have the lights properly aligned.

55The Guide appears to be the only source for the standard of care as it relates to lighting at baseball fields and makes clear that “baseballs may be lost from sight if they were to travel into the path of a light and this occurrence cannot be eliminated even with the proper placement of light poles and with the recommended horizontal illuminance at a baseball field.”

56The essence of the Plaintiff’s claim under the OLA is that the Town should not have released the baseball field for play on May 6, 2019 until the lights had been aligned. While the evidence establishes that the Town knew that winter conditions could affect the proper alignment of the lights, the circumstances, looked at in their totality does not allow for a perfect playing field at the beginning of the playing season. As the Court of Appeal noted in Kerr v Loblaws Inc. at para 19, the standard of care is one of reasonableness. The Town’s duty of care on May 6, 2019 required “neither perfection nor unrealistic or impractical precautions against known risk.”

57When the Plaintiff took to the playing field on May 6, 2019, he had played slow pitch baseball for many years. He had played under the lights at the baseball field. He knew that there were risks of playing baseball. One of those risks was the possibility he could lose a ball in the lights. He had seen people injured playing baseball.

58It was not just the Plaintiff who played baseball on May 6, 2019. It was the first game of the season. While there was some evidence other players in that game (and future games) had issues with the lighting, the evidence is also clear that none of the players on May 6, 2019 stopped playing even when they had seen the Plaintiff struck in the eye with a baseball.

59After the game in which the Plaintiff was injured, according to the evidence of the President of the League, Douglas Dwyer, he received feedback from more than 50 players out of the 205 registered players that there were concerns about the lights at the baseball field. None of these players were called to give evidence about the extent of the type of problems they experienced with the lights. However, even accepting that there were this number of players who experienced problems with the lighting, it demonstrates that despite any problems with the lights, League play at the playing field continued until the lights were adjusted on June 27, 2019.

60Counsel for the Plaintiff took issue in his closing argument that the Town produced no records relating to what the Town did regarding the positioning of the lights prior to June 27, 2019 and no records demonstrating how the lights were adjusted after June 27, 2019. Records or no records, there is no evidence from Mr. Dwyer or any other witness that there were any complaints after June 27, 2019 as it relates to the lighting at the field.

61The Town, as the occupier and owner of the baseball field, had a duty to take such care as in all the circumstances of the case was reasonable to see that persons like the plaintiff who entered onto the playing field were reasonably safe while on the playing field. The duty imposed on the Town by the OLA as reflected in the reasons of the Supreme Court in Waldrick at 477 is to “promote, and indeed, require where the circumstances warrant, positive action on the part of occupiers to make their premises reasonably safe.” (emphasis added).

62The circumstances of this case have to take into account the impact of a Canadian winter on the alignment of the lights and the time of the year when the field was released for League play. The evidence is clear that heavy equipment was required to access the lights which stood 13.7 metres above the ground. The evidence is also clear that because the ground was soft it was not possible to get heavy equipment to the lights until June. The question that this raises is whether it was reasonable, given these circumstances, to have released the field to the League for play in early May.

63Mr. Dwyer, the President of the League, testified that the League’s main issue with the state of the baseball field at the beginning of the season related to the grooming of the infield and the outfield. He also had concerns about the light breakers as there had been some years when the lights had not come on. He testified that “typically” there had not been issues with the alignment of the lights.

64The reality of what happened on May 6, 2019 is that two oldtimer slow pitch baseball teams took to the field to play a game of baseball. Each player had an opportunity to conduct their own assessment as to the state of the playing field, including the lighting. The players who testified about what happened on May 6, 2019 all agreed that playing baseball under the lights could result in a ball being lost in the lights. The same players, including the plaintiff, all agreed that playing baseball has an inherent risk of being hit by a baseball whether the ball is hit or thrown.

65The Plaintiff testified he lost the ball because of a flash of light when it was thrown in his direction by the second baseman. No one else on the field saw a flash. The ball was thrown directly towards the Plaintiff. It was a straight throw. It was not thrown in an arc. What is particularly significant about the events of May 6, 2019 is that the game continued. Mr. Gerard Traverse who had played baseball in the League for two years testified that when he was playing first base the night of May 6, 2019, he had issues seeing balls thrown to him from the short stop position. He thought the lights might have been misaligned. Most significantly, Mr. Traverse acknowledged, in response to a question from the bench, that playing baseball under the lights brings with it the risk of losing the ball in the lights and being hit. Moreover, Mr. Traverse, despite any concerns he had with the alignment of the lights, continued to play after the Plaintiff was injured and played all of the games scheduled between May 6, 2019 and June 27, 2019.

66On the facts as they existed on and prior to May 6, 2019, the Town had an obligation to provide for the safety of the players on the baseball field. The Town is not under a form of strict liability. The Town is not an insurer. The standard of care imposed on the Town is one of reasonableness where the circumstances warrant it to take positive action. There is no evidence that prior to May 6, 2019 any player at first base had been blinded by a “flash”. While the Town might have known the lights could be out of alignment due to winter conditions it was not unreasonable for the Town to defer alignment until the field firmed up thus allowing heavy equipment to access the lights. This is particularly so given the League had used the baseball field in the early spring for many seasons prior to 2019 without incident.

67According to the only expert who testified, the lights in left field were properly positioned so as not to create a problem for a first baseman fielding a ball from second base. According to the Guide losing a ball in the lights is something that cannot be eliminated from the game of baseball even with the proper placement of light poles.

68Taking into account all of the circumstances as they existed on May 6, 2019, I am satisfied that the defendants, in particular the Town, applying the principle of reasonableness released the baseball field for play by the Plaintiff and anyone else on the field that night.

Volenti – Did the Plaintiff Assume the Risk of Being Hit by a Baseball

69If I am wrong in my conclusion that the Town is not liable to the Plaintiff pursuant to s 3(1) of the OLA, I must still consider the application of S 4 (1) which provides that the duty of care provided for in S 3 (1) does not apply in respect of risks willingly assumed. This requires the court to consider what risks did the Plaintiff know of before he took to the field on May 6 and did he “willingly assume” those risks. Put differently, if there is liability under S 3 (1) of the OLA, can the defendants shelter under a defence afforded by S 4 (1).

70I have already ruled that the waiver does not apply to exclude liability in this case. But a careful reading of the waiver makes it very clear to the reader that playing slow pitch Oldtimers baseball brings with it a significant risk of injury or even death. The Plaintiff, in his own evidence, accepted that there was always a risk of being hit by a baseball that might be lost in the lights. Heather Stubbs, the Plaintiff’s wife, agreed in cross examination that her husband knew the risks of playing baseball which included losing the ball in the lights. Other players who testified also confirmed they knew one of the risks of playing baseball was losing the ball in the lights.

71Every Canadian adult who has played hockey or baseball in their youth knows from an early age that playing these sports comes with the risk of being injured. As those young players progress in age they continue to enjoy the sport they have lived with all their life. Adult recreational baseball and hockey leagues have been around for decades. Adults playing in these leagues continue to play recognizing that participation in these sports brings with it the risk of injury.

72Many Canadians will play one form or another of organized sport as they age through adolescence, young adulthood and well into their “golden” years. Oldtimers hockey, soccer and baseball keep many Canadians of all sexes and ethnicity feeling young as they participate in a sport they may have grown up enjoying. But participation in all kinds of sport, whether it be at the oldtimers level or not, brings with it the possibility of injury. In Levita v Alan Crew et al., 2015 ONSC 5316 Firestone J summarized those risks as follows at para 88:

88] In summary, the risks that a hockey player assumes are the following:

A hockey player assumes the risk that he may suffer injuries from acts by other players that occur in the course of play, i.e. for the advancement of the game, but are not intended to inflict injury.
A hockey player assumes the risk that he may suffer injuries from acts by other players that are in contravention of the rules of the game but are not intended to cause injury.
In some circumstances, a hockey player assumes the risk that he may suffer injuries at the hand of other players from acts that occur outside the course of play, i.e. not for any advancement of the game, if such injuries are not the result of recklessness (i.e. actions taken in an uncontrolled or undisciplined manner) or an intention to cause injury. In a fast-paced game like hockey,[1] it is highly possible that an action may “begin” when the game is on, and that action may have been undertaken to advance the game. However, by the time the action is fully executed, the game may have stopped or the moment may have passed.
A hockey player never assumes the risk that he may suffer intentional or reckless battery by another player in a non-contact league.[2]
The degree of risk a hockey player assumes can also be assessed in light of the type of league itself and the level or style of play that normally takes place in that league. In St. Laurent, the court found that the defendant’s actions justified the roughing call made by the linesman but did not fall below the standard of a reasonable competitor in his place, and wrote “in reaching that conclusion I have taken into account the nature of the match itself and the level of aggressiveness within the league” (at para. 40).”

73If one was to substitute the word “baseball” for the word “hockey” referenced in the Reasons of Firestone J above, I would suggest that someone participating in a game of oldtimers baseball assumes similar types of risks. In addition, a baseball player, when he or she steps onto the baseball diamond, based on the evidence of those who testified in this trial, can be said to accept the following risks:

a baseball player assumes the risk that he may suffer injuries from the acts of other players such as a baseball being hit or thrown in his direction; a baseball player also assumes the risk that a baseball may be lost in the lights if a game is being played at night under the lights.

74As it relates to the risk of being hit by a baseball because the ball is “lost” in the lights, this is a risk of the game that others who testified at the trial agreed was inherent in the game. Mr. Traverse, who was playing in the same game as Mr. Kolsen on May 6, 2019, agreed in response to a question put to him by the court that there was a risk of losing a ball in the lights and that, despite that risk, he continued to play the game after Mr. Kolsen was injured. Like Mr. Traverse, Mr. Cavalier, another oldtimer who played baseball, agreed that losing a ball in the lights is a risk of playing the game.

75The law as it relates to the legal application of a defence based on volenti was addressed by the Supreme Court in Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 SCR 1186 where at para 32 Wilson J stated:

“32. The defence of voluntary assumption of risk is based on the moral supposition that no wrong is done to one who consents. By agreeing to assume the risk the plaintiff absolves the defendant of all responsibility for it. As Fleming puts it in The Law of Torts, supra, at p. 264:

Obviously this defence bears much resemblance to contributory negligence. Most often, indeed, the two defences overlap: viz. whenever knowingly to assume a risk is also negligent, e.g. riding in a car with a drunk driver. But like intersecting circles, some cases support one defence without the other; thus to assume the risk may in some circumstances be perfectly reasonable or (per contra) the risk, though unreasonable, may not be fully appreciated.

As long as either defence defeated the plaintiff entirely, precise demarcation served only academic interest, but the introduction of apportionment for contributory negligence has posed a serious problem concerning the future role of voluntary assumption of risk as a complete defence. It seems rather odd that a plaintiff who is himself negligent might now fare better than one who is not, e.g. that an intoxicated passenger should stand a better chance against a drunk driver than a passenger who is sober. The judicial response to this dilemma has been to impose ever stricter requirements for the defence of volenti to the point where it is now but rarely successful.

Presumably the reason for not formally drawing the defence within the net of apportionment (or what would amount to the same, flatly abolishing it) is the feeling that people should remain free to agree to waive their legal rights, at least under conditions of free and informed choice.

Since the volenti defence is a complete bar to recovery and therefore anomalous in an age of apportionment, the courts have tightly circumscribed its scope. It only applies in situations where the plaintiff has assumed both the physical and the legal risk involved in the activity (see: Car and General Insurance Corp. v. Seymour, [1956] S.C.R. 322; Dube v. Labar, [1986] 1 S.C.R. 649).”

76A defence based on volenti provides both a defence to a negligence claim at common law as well as a claim under the OLA given the application of s 4 (1).

77As it applies to the facts of this case the question to be asked and answered is whether Mr. Kolsen’s claim, whether framed in negligence or the OLA, should be denied because he voluntarily assumed both the legal and physical risk of being injured while playing baseball. It is well recognized that a defence based on the principle of voluntary assumption of risk is a defence that must be tightly circumscribed.

78The interconnection between s. 4 (1) of the OLA and the defence of volenti was considered in Waldick v. Malcolm, [1991] 2 S.C.R. 456 where Iacobucci J. referenced that s. 4 (1) is the embodiment of the doctrine of volenti. At para 46 of his Reasons, Iacobucci J noted that:

In my view, the legislature’s intention in enacting s. 4(1) of the Act was to carve out a very narrow exception to the class of visitors to whom the occupier’s statutory duty of care is owed. This exception shares the same logical basis as the premise that underlies volenti, i.e., “that no wrong is done to one who consents. By agreeing to assume the risk the plaintiff absolves the defendant of all responsibility for it”: per Wilson J. in Crocker, supra at p. 1201. Rare may be the case where a visitor who enters on premises will fully know of and accept the risks resulting from the occupier’s non-compliance with the statute. To my mind, such an interpretation of s. 4(1) accords best with general principles of statutory interpretation, is more fully consonant with the legislative aims of the Act, and is consistent with tort theory generally.

79In determining whether the defence of volenti is available on the facts of this case, the court must be satisfied that Mr. Kolsen: a) knew of the risk he could lose sight of a baseball thrown towards him because baseballs are known to get lost in the lights; and, b) that he freely accepted this risk knowing that he could be injured.

80On the evidence it is clear the Plaintiff and all of the players playing oldtimers slow pitch baseball knew there was a risk of injury playing the game. The Plaintiff had seen other players injured. He had seen players lose the ball in the lights. He himself had lost the ball in the lights on prior occasions.

81While I have ruled that the waiver does not afford a defence to the Plaintiff’s claims it does make clear that, if it had applied to the “League” game on May 6, 2019, the Plaintiff understood playing baseball brought with it “significant risk of injury” even “death”. The Plaintiff had signed similar waivers many times prior to his injury. It is beyond any doubt that the Plaintiff knew, not only from the language of the waiver but perhaps more importantly because he had played the game for many years, that playing baseball is not without risk. It is a risk that the Plaintiff and every other Canadian playing baseball accepts; i.e. the risk of being hit by a baseball that might become lost in the lights.

82The Plaintiff like all of the other players not only knew of these risks but he willingly accepted the risk. I am satisfied that S 4 (1) provides a defence to any claim under the OLA. I am also satisfied that the Defendants have made out the common law defence of volenti. The Plaintiff’s claims are dismissed.

83The court expects the parties to resolve the issue of costs. If resolution of the issue of costs cannot be achieved, the Defendants are to submit their costs submissions limited in total to no more than 5 pages by June 1, 2026 with the Plaintiff’s responding submissions, also limited to a total of 5 pages, to be received by June 15, 2026.

EDWARDS, J

Released: May 7, 2026

Appendix A – Waiver in Effect at Time of Plaintiff’s Injury

**WAIVER OF RESPONSIBILITY, RELEASE OF LIABILITY AND ASSUMPTION OF RISK

In consideration of being allowed to participate in any way in SLO-PITCH NATIONAL SOFTBALL INC. (sometimes known as Slo-Pitch National) tournaments, in this and any future year, I appreciate, acknowledge and agree, (1) that there is significant risk of injury or damage, including the potential for permanent paralysis and for death, in slo-pitch softball, including also injury and/or damage resulting from ordinary negligence or the carelessness of league officials, other players, coaches, managers, conveners, umpires, sponsors, officials and agents and I agree to assume all such risk of injury or damage. (2) that a benefit is realized by me through participation in and/or attendance at SLO-PITCH NATIONAL tournaments; and in consideration of being allowed to participate and/or attend in any way. I for myself, my heirs, executors, administrators and successors, HEREBY RELEASE FROM ANY AND ALL PRESENT AND FUTURE CLAIMS AND LIABILITY AND HOLD BLAMELESS AND AGREE TO INDEMNIFY AND WAIVE ALL CLAIMS against SLO-PITCH NATIONAL SOLFTBALL INC. and all players, coaches, managers, conveners, umpires, sponsors, affiliated leagues, agents and owners or operators of slo-pitch and/or softball fields or facilities in respect of any personal injury, loss or damage, however caused, now and forever. (3) that this agreement shall be in accordance with the laws of whatever province or territory shall prevail and that should any part of this agreement be held invalid for any reason, the balance of the agreement shall be held in full force. (emphasis added to the word torunaments)

□ I have read and understand the conditions above.

IN ADDITION, I AGREE TO, AT ALL TIMES, INSPECT EQUIPMENT, PLAYING FIELDS, PREMISES AND TOURNAMENT-RELATED FACILITIES FOR POSSIBLE RISK AND DETERMINE FOR MYSELF THAT CONDITIONS ARE ACCEPTABLE FOR ME TO COMMENCE OR CONTINUE PARTICIAPTION AND/OR ATTENDANCE. IF I OBSERVE ANY UNUSUAL SIGNIFICANT HAZARD DURING PARTICIPATION AND/OR ATTENDANCE, I WILL REMOVE MYSELF FROM PARTICIPATION AND/OR ATTENDANCE AND IMMEDIATELY BRING SUCH HAZARD TO THE ATTENTION OF THE NEAREST OFFICIAL.

□ I have read and understand the conditions above.

I ALSO AGREE THAT MY PARTICIPATION AND/OR ATTENDANCE COMMENCING AND/OR CONTINUING, INDICATES ACCEPTANCE OF EQUIPMENT, FIELDS, CONDITIONS, PREMISES ET AL, I KNOWINGLY AND FREELY ASSUME ALL RISKS AND RESPONSIBILITY FOR MY PARTICIPATION AND/OR ATTENDANCE, COMMENCING OR CONTINUING AND I hereby grant to SLO-PITCH NATIONAL INC. and their agents, the irrevocable right to use my name, face, or other likeness for any and all purposes, including to advertise any tournament or possible future tournament.

□ I have read and understand the conditions above

Appendix B – Waiver in Place Subsequent to Plaintiff’s Injury

**WAIVER OF RESPONSIBILITY, RELEASE OF LIABILITY AND ASSUMPTION OF RISK

In consideration of being allowed to participate in any way in SLO-PITCH NATIONAL SOFTBALL INC. (sometimes known as Slo-Pitch National) events, in this and any future year, I appreciate, acknowledge and agree, (1) that there is significant risk of injury or damage, including the potential for permanent paralysis and for death, in slo-pitch softball, including also injury and/or damage resulting from ordinary negligence or the carelessness of league officials, other players, coaches, managers, conveners, umpires, sponsors, officials and agents and I agree to assume all such risk of injury or damage. (2) that a benefit is realized by me through participation in and/or attendance at SLO-PITCH NATIONAL events; and in consideration of being allowed to participate and/or attend in any way. I for myself, my heirs, executors, administrators and successors, HEREBY RELEASE FROM ANY AND ALL PRESENT AND FUTURE CLAIMS AND LIABILITY AND HOLD BLAMELESS AND AGREE TO INDEMNIFY AND WAIVE ALL CLAIMS against SLO-PITCH NATIONAL SOLFTBALL INC. and all players, coaches, managers, conveners, umpires, sponsors, affiliated leagues, agents and owners or operators of slo-pitch and/or softball fields or facilities in respect of any personal injury, loss or damage, however caused, now and forever, including but not limited to, negligence, negligent, omissions, carelessness, breach of contract or breach of any statutory duty of care; and (3) that this agreement shall be in accordance with the laws of whatever province or territory shall prevail and that should any part of this agreement be held invalid for any reason, the balance of the agreement shall be held in full force. (emphasis added to the word events)

□ I have read and understand the conditions above.

I ALSO AGREE THAT MY PARTICIPATION AND/OR ATTENDANCE COMMENCING AND/OR CONTINUING, INDICATES ACCEPTANCE OF EQUIPMENT, FIELDS, CONDITIONS, PREMISES ET AL, I KNOWINGLY AND FREELY ASSUME ALL RISKS AND RESPONSIBILITY FOR MY PARTICIPATION AND/OR ATTENDANCE, COMMENCING OR CONTINUING. AND I hereby grant to SLO-PITCH NATIONAL INC. and their agents, the irrevocable right to use my name, face, or other likeness for any and all purposes, including to advertise any tournament or possible future tournament.

□ I have read and understand the conditions above.