Ontario court rejects sports injury claim despite defective waiver

• Ontario court dismissed personal injury claim despite defective sports injury waiver
• Voluntary assumption of risk defence applies even with flawed waiver
• Occupiers' Liability Act requires clear communication of liability exclusions
• Properly drafted waivers are essential for recreational sports participants
• Retroactive fixes cannot save a defective document

The court ruled that even a flawed waiver can support a voluntary assumption of risk defence, known as volenti non fit injuria.

A recent Ontario court decision has highlighted the importance of properly drafted sports injury waivers in recreational activities. Mark Kolsen, a slo-pitch player, signed a waiver each year from 2012 to 2019 to participate in the Tottenham Oldtimers Slo-Pitch League. However, when he was struck in the eye by a baseball during a league game on May 6, 2019, his claim for personal injury was dismissed despite the defective document. The court ruled that even a flawed waiver can support a voluntary assumption of risk defence, known as volenti non fit injuria.

The decision in Kolsen v. The Corporation of the Town of New Tecumseth et al (2026 ONSC 2729) was based on two key principles: the Occupiers' Liability Act (OLA) and the voluntary assumption of risk defence. Under s. 5(3) of the OLA, occupiers must actively bring any liability exclusion to a participant's attention. In this case, the waiver failed to do so, but the court found that the plaintiff was still on notice about the risks involved in playing baseball. The Supreme Court of Canada has confirmed that volenti non fit injuria applies only where a plaintiff assumes both physical and legal risk.

The decision serves as a reminder to lawyers advising clients on participating in recreational sports to ensure that any waivers or liability releases are properly drafted and clearly communicate the risks involved. A defective document may not be sufficient to bar a claim, and retroactive fixes cannot save a flawed waiver. The court's ruling highlights the importance of transparency and clear risk communication in sports injury waivers, particularly in light of the OLA's requirements.

Lawyers advising clients on participating in recreational sports should ensure that any waivers or liability releases are properly drafted and clearly communicate the risks involved, as a defective document may not be sufficient to bar a claim.

Source: Original reporting via Canadian Lawyer