Limitations Of Liability, Waivers, And Occupier Liability In Ontario

Overview

A recent Ontario Superior Court decision serves as a reminder that a liability waiver is only as effective as its drafting. In Kolsen v. The Corporation of the Town of New Tecumseth et al¹, the defendants prevailed only because the Court found no breach of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “OLA”) and because the plaintiff had voluntarily assumed the risks inherent in the sport, but critically, not based on their contractual waiver of liability that barred the action.

This case serves as a warning to occupiers (landlords, tenants, employers, or otherwise) using liability waivers/limitations of liability, whether for recreational programs, sports leagues, community events, or any other activity where participants are invited onto a parties’ premises, to ensure your documents are clear and in line with governing statutes.

The Facts

Mr. Kolsen was an experienced softball player and played in a Slo-Pitch League between 2009 and 2019. As part of the registration process, all players were required to sign a waiver, and Mr. Kolsen executed a waiver annually between 2012 and 2019.²

On May 6, 2019, Mr. Kolsen was playing in a league game at a baseball field for which the Town of New Tecumseth (the “Town”) was responsible. In the first play of the season, Mr. Kolsen was struck in the eye with a ball. He suffered a serious eye injury and commenced legal proceedings against the Town, Slo-Pitch National Softball Inc. (“SPN”), and the player who threw the ball.³

The Waiver: Why It Failed

1. The Waiver Only Covered “Tournaments” – Not League Play

The waiver signed by the plaintiff in 2019 expressly related to “tournaments”. The game in which the plaintiff was injured was a “league” game, not a tournament game.

The defendants argued that the phrase “in consideration of being allowed to participate in any way” included in the waiver was broad enough to capture league play. The court rejected this argument. In this contract between business and consumer, the waiver had to be strictly construed, and any ambiguity resolved against the drafter. The waiver could not be rewritten to apply to “league” play.⁴

2. The Waiver Did Not Address Statutory Liability Under the OLA

The waiver made no mention of the statutory duty of care reflected in the OLA.

1. 3(1) of the OLA states that “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”.⁵

Further, s. 5(3) of the OLA states that where an occupier restricts, modified or excludes an occupier’s duty of care or an occupier’s liability for breach therefor, “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.”

In other words, where a party relies upon a limitation of liability set forth in a waiver, s. 5(3) of the OLA requires the occupier to take reasonable steps to bring that restriction to the attention of the person to whom the duty is owed.

Though the Court did not specifically rely on it for its decision, it did note that the flaws in the waiver had since been remedied. In 2022, SPN changed the wording from participation in Slo-Pitch “tournaments” to participation in Slo-Pitch “activities, programs, tournaments, or league play,” and added language purporting to exclude liability “including but not limited to, negligence, gross negligence, breach of contract or breach of any statutory duty of care”.⁶

Occupiers’ Liability Act: No Breach Found

Despite the finding that the waiver failed, the claims were still dismissed on two alternative grounds.

Section 3(1) of the OLA does not impose strict liability on an occupier. The obligations of an occupier are not so stringent as to raise it to the standard of an insurer, and the applicable standard of care is one of reasonableness, requiring neither perfection nor unrealistic or impractical precautions against known risk.

The court found that the Town had acted reasonably with respect to the maintenance of the field. According to the only expert who testified, the lights in left field were properly positioned, and losing sight of a ball in the lights cannot be eliminated from the game of baseball.⁷

The plaintiff and all of the players knew there was a risk of injury playing the game. The plaintiff had seen other players injured, had seen players lose the ball in the lights, and had himself lost the ball in the lights on prior occasions. The plaintiff, like all the other players, not only knew of these risks but willingly accepted them. Section 4(1) of the OLA states that the duty provided in s. 3(1) does not apply “in respect of risks willingly assumed by the person who enters on the premises”.⁸ In this case, s. 4(1) was found to provide a defense, and the common law defense of volenti non fit injuria, or knowing assumption of risk was also made out.

The plaintiff’s claims were dismissed.

Takeaways for Occupiers:

• Ensure your liability waiver covers all potentially relevant activities.
• Address the OLA directly, expressly referencing and excluding the statutory duty of care under s. 3(1). A generic release of “all claims” is unlikely to be sufficient. The court must be satisfied that the statutory duty was specifically brought to the participant’s attention.
• Ensure that all entities (including owners, operators, affiliated organizations, and agents) that you intend to protect (and/or are contractually obligated to protect) are clearly and specifically identified.

This bulletin is intended as general information only and does not constitute legal advice. Please consult legal counsel regarding the application of these principles to your specific circumstances.

Footnotes

1 2026 ONSC 2729 [Kolsen].

2 Kolsen, para 3.

3 Kolsen, paras 8, 11.

4 Kolsen, para 28.

5 Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 3(1).

6 Kolsen, paras 35, 38.

7 Kolsen, paras 56 – 62.

8 Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 4(1).