Field of “Beams”: Court Denies Claim of Plaintiff Blinded By the Light During Rec-League Softball Game

July 25, 2026

In May 2026, Justice Mark L. Edwards released his decision in Kolsen v. The Corporation of the Town of New Tecumseth et al, 2026 ONSC 2729.

This decision concerned the trial of a matter whereby the plaintiff was struck in the eye by a baseball while playing in an adult recreational league. Key issues in dispute involved i) the applicability of a waiver signed by the plaintiff, ii) whether the defendants’ conduct fell below the reasonableness standard in s.3 of the Occupiers’ Liability Act (“OLA”) and iii) whether there was any application of the statutory defence in s.4 of the OLA and the common law doctrine of volenti non fit injuria.

Background:

The plaintiff, Mr. Kolsen, was an experienced softball player, having started playing in the 1970s. He consistently participated in multiple recreational softball leagues between 2007 and 2019.

The incident giving rise to this claim took place on May 6, 2019, when Mr. Kolsen was scheduled to play in an organized league game in a municipal park. This municipal park, including the park’s lighting, was the responsibility of the Town of New Tecumseth. The game was scheduled to start at 8:15 pm. Prior to the game commencing, the plaintiff engaged in a warm-up on the field whereby he and his teammate on second base threw back and forth.[1]

On the first play of the inning, the batting team hit a ground ball. It was fielded by a teammate of the plaintiff, who threw the ball to Mr. Kolsen, who was playing first base. According to Mr. Kolsen, all he could remember seeing was a “flash” of light before being struck in the eye with the baseball.

Numerous eyewitnesses and participants in the softball game confirmed that the manner in which the baseball was thrown at the plaintiff was a “routine play” and a “hard, fast, direct throw”. Moreover, while some of the other participants did admit there had been previous occasions where problems with lighting and visibility were reported, these same witnesses gave evidence that there was “always a risk that a ball will be lost in the lighting and that one has to be prepared for this eventuality”. Furthermore, all of these other witnesses denied seeing the “flash” reported by the plaintiff.[2]

The President of the Softball League gave evidence that on the night in question, none of the players, league officials or umpires raised any concerns with the lighting at the field. In fact, play resumed shortly after Mr. Kolsen’s injury.

Issue 1: Waiver

Every year he participated in one of the leagues, the plaintiff was required to execute a waiver. He confirmed that he had completed electronic versions of this waiver every year between 2012 and 2019.

Mr. Kolsen signed an electronic waiver on April 15, 2019, using his home computer. It was the position of the defendants that the waiver served as a complete bar to the plaintiff’s claim. The plaintiff took the position that the waiver was of no force and effect because the waiver signed by the plaintiff only specifically applied to “tournaments” and not “league” play, as was the game being played on the night in question.

Justice Edwards began his analysis by reviewing the “fundamental principles” relating to the application of a waiver.

It is the onus of the defence to prove that a waiver applies to exclude the claims of the plaintiff (Snucins v. Conquest Tours (Toronto) Ltd. (Div. Ct.), 1990 CanLII 6967 (ON SC).
Waivers are not “to be circumvented by artful interpretation. Rather, they are to be construed contra preferentum, narrowly, carefully and applied for their objectively determined meaning (Arksey v. Sky Zone Toronto, 2021 ONSC 4594 (CanLII).
If 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 (Gallant v. Fanshawe College of Applied Arts and Technology, 2009 CanLII 50755 (ON SC).
The clearest of language is required if a party wants to absolve themselves of their own negligence. [3]

Edwards J. ultimately held that the waiver executed by the plaintiff did not appropriately and explicitly bar any claims of the plaintiff for the game whereby Mr. Kolsen was injured. He placed particular emphasis on the reference in the 2019 waiver to “tournament” play.

He also drew inferences from a revised subsequent waiver that the softball league began using in 2022 (three years later), which substituted “tournament” for “league play” and also specifically included new language to specifically exclude liability imposed by statute.

His Honour held that “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”.[4]

Issue 2: Did the Conduct of the Defendant Fall Below the Reasonableness Standard?

His Honour began by reiterating the maxim that the standard of care under the OLA and at common law of negligence are synonymous:

“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.”[5]

In this case, there was no dispute that the Town was the owner and occupier of the park and the baseball field, and that the Town was responsible for the maintenance of the baseball field, including the lighting. There was also no dispute that the plaintiff suffered a serious injury.

Citing the ONCA in Kerr v. Loblaws, 2007, ONCA 371, his Honour found that the reasonableness standard “requires neither perfection nor unrealistic or impractical precautions against known risk”.[6]

The Town gave evidence that the lighting of the baseball field did need to be inspected, but that due to the snow and ice that accumulated in the winter, this inspection and any changes could only be done in spring. Furthermore, in order to access the lighting, which was nearly 14 metres (or 45 feet) off the ground, heavy equipment was required to inspect it and to make adjustments.

It was further evidence of the Town that such maintenance was not possible until later in the spring season once the ground could firm up. The lights at the field were not adjusted until June 27, 2019.

While the plaintiff took the position that it was unreasonable for the municipality to permit any entrants onto the baseball field and participate in baseball activities before adjusting the lights on June 27th, the plaintiff failed to adduce any expert evidence on the standard of care expected for the defendants. This failure by the plaintiff to adduce any alternative expert evidence on the standard of care, or to seriously challenge the underlying assertions and basis underpinning the defence expert’s opinion, was referenced a few times by Justice Edwards in his decision.[7]

In contrast, the defendants called expert evidence from a professional engineer. The defence expert conducted a site visit and consulted industry lighting guidelines and recommended best practices for the lighting of sports and recreational facilities.

In particular, the IES guideline cited by the defence expert recognized that:

“that baseballs may be lost from sight if they travel into the path of a light and that this cannot be eliminated [Judge’s] emphasis) even with the proper placement of light poles and with the recommended horizontal illuminance of the baseball field.[8]

After considering all of the above, His Honour was satisfied that the defendants, and in particular the Town, acted within the reasonableness standard when they released the baseball field for play by the plaintiff and all other participants that night, and that the defendants were not liable.[9]

Issue 3: Did the Plaintiff Assume the Risk of Being Hit by the Baseball?

Despite having disposed of the claim in his analysis of s. 3 of the OLA, Justice Edwards also considered whether the s. 4 provisions of the OLA about voluntary assumptions of risk and the common law principle of volenti non fit injuria applied.

While having found that the waiver did not apply to exclude liability in this case earlier in his decision, His Honour nonetheless found that the waiver language made clear to the signatory (the plaintiff) that playing baseball brought a significant risk of injury or even death. Moreover, the plaintiff himself accepted that “there was always a risk of being hit by a baseball that might be lost in the lights”. This view was corroborated by other players.

More broadly, Justice Edwards opined that “Every 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”.

Moreover, His Honour explicitly imported the risks held to be voluntarily assumed by hockey players in Levita v. Alan Crew et al., 2015 ONSC 5316 at paragraph 88, and indicated that one could simply substitute hockey with baseball.[10] Such risks include:

Players assume the risk they may suffer injuries from acts by other players that occur in the course of play, but not intended to inflict injury.
Players assume the risk that they may suffer injuries from acts by other players that are in contravention of the rules of the game but not intended to cause injury.
In some circumstances, a player assumes the risk that they may suffer injuries at the hand of other players from acts that occur outside of the course of play if such injuries are not the result of recklessness or an intention to cause injury.
A player never assumes the risk that they may suffer intentional or reckless battery by another player in a non-contact league.
The degree of risk a 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.

Justice Edwards then considered the common law defence of volenti and its potential application. He cited with approval the reasons of Iacobucci J. in Waldick v. Malcolm, [1991] 2 S.C.R. 456 that “s. 4 (1) is the embodiment of the doctrine of volenti.” [11]

His Honour noted that a defence based on the common law principle of volenti provides a defence to a negligence claim brought at common law as well as a claim under the OLA through the operation of s. 4.

His Honour held that for the defence of volenti to be available, the Court must be satisfied that the plaintiff 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.

Edwards J. was satisfied that the plaintiff and all of the other players knew there was a risk of injury playing the game. The plaintiff had seen other players injured. He had seen other players lose sight of the ball in the lights. He himself has lost sight of the ball in the lights on prior occasions.

While the waiver did not afford a complete defence to the claim, it made clear that the potential “significant risk of injury or death” from playing baseball was brought to the attention of the plaintiff on multiple occasions in the years before the date of injury.

The plaintiff was found to not only know of the risks of playing baseball, but willingly accept them. As such, Justice Edwards was satisfied that s. 4(1) of the OLA provided a complete defence and that the common law defence of volenti was also made out.

Conclusion and Takeaways:

This decision provides helpful direction and guidance on important considerations for claims arising out of recreational sports leagues. It reinforces the analytical approach and critical importance of specificity when it comes to the interpretation of waivers generally. The decision also stands for the proposition that repeated and consistent signature of a waiver, despite not being sufficiently worded to exclude liability, can still help inform the level of the plaintiff’s awareness and assumption of risk involved in the underlying activity.

This decision reaffirms and serves as an example that occupiers will be held to the standard of reasonableness, rather than perfection. The case also highlights the importance of parties adducing evidence on the standard of care from properly qualified experts.

Finally, Justice Edwards’ decision also provides helpful clarification on the interplay between enshrined statutory duties and defences in the OLA, and the common law principles of negligence and volenti.

[1] Kolsen v. The Corporation of the Town of New Tecumseth et al, 2026 ONSC 2729 at paras 7-10.

[2] Ibid, at paras 13-19.

[3] Ibid, at paras 30-33.

[4] Ibid, at para 38.

[5] Ibid, at para 39.

[6] Ibid, at para 44.

[7] Ibid, at para 47, 54.

[8] Ibid, at para 47.

[9] Ibid, at para 68.

[10] Ibid, at pars 72-73.

[11] Ibid, at para 78.