By Jacob E. Zelman

Many organizations in Canada rely heavily on the efforts of volunteers to assist with the delivery of services they provide.

The Ontario Superior Court of Justice has recently provided new guidance on the aspects of an organization’s relationship with its volunteers which bear resemblance to a traditional employment relationship

In the decision of Hannan v. Scouts Canada, the Ontario Superior Court of Justice held that Scouts Canada “wrongfully dismissed” Wayne Hannan, an 86-year-old volunteer, after the organization denied his annual application to renew his volunteer status last November.

Among other legal issues, the court canvassed:

• whether a contractual relationship existed between Scouts Canada and Mr. Hannan such that court intervention would be appropriate,
• whether Scouts Canada failed to treat Mr. Hannan fairly, and in accordance with its policies and procedures, and
• the appropriate remedy for a “wrongfully dismissed volunteer.”

The possibility of a contractual relationship between an organization and its volunteers

Scouts Canada submitted that none of its policies or procedures for volunteers created a legally binding relationship between the organization and Mr. Hannan, and that Mr. Hannan’s termination was not actionable.

Traditionally, legal rights which are actionable in court include private rights in property, contract, tort and statutory causes of action.

While the court acknowledged that the mere existence of by-laws and rules does not make a breach of the rules actionable unless those internal processes can be viewed as contractual in nature, the court disagreed that there was not a contractual relationship between Mr. Hannan and Scouts Canada.

Part of the grounding for the court’s decision that the relationship between Scouts Canada and Mr. Hannan was a contractual one (therefore permitting intervention by the court) included that:

• Scouts Canada is incorporated and all volunteers and staff are members of the corporation.
• Membership in the corporation is dependent on volunteer status according to the by-laws.
• All volunteers at all levels of the organization commit themselves to be bound by the Code of Conduct.
• Volunteers are recruited and induced to continue as volunteers by a number of well publicized policies and procedures promising to support volunteers in their roles and describing a fair, comprehensive and open process to address performance concerns and impose discipline if necessary.
• Membership in Scouts Canada is not simply passive membership as might be the case with a social club or a church congregation but demands a significant ongoing commitment on the part of the volunteer.
• The structures developed by Scouts Canada for the support and supervision of volunteers are legal structures similar to work place policies.
• Nothing in the annual screening and renewal process or in the policies themselves suggests that they are not intended to be binding on the volunteers and on the organization.

Termination of volunteer status

Scouts Canada cited “safety concerns and resistance to program adaptation” as the bases for Mr. Hannan’s termination.

Mr. Hannan, however, argued that he was not given a fair opportunity to respond or correct any issues, constituting a violation of the organization’s volunteer management policies.

The court held that the refusal to renew Mr. Hannan for alleged cause was a “wrongful termination of the Applicant’s volunteer status and therefore his membership in Scouts Canada.”  The court went on to clarify that if there were concerns in relation to Mr. Hannan’s performance, or any reason to believe otherwise that Mr. Hannan had violated the applicable Code of Conduct, then the applicable policies and procedures should have been followed.

Possible remedies for a “wrongfully dismissed” volunteer

In addition to the declaratory relief sought by Mr. Hannan, costs were awarded to Mr. Hannan on a full indemnity basis (i.e. 100% of the fees incurred).

The court recognized that the relationship between Mr. Hannan and Scouts Canada was not an employment contract for Mr. Hannan to benefit financially from, and as a result, there was no pecuniary loss to Mr. Hannan associated with Scouts Canada’s breach of its contractual relationship with Mr. Hannan.

The court also cautioned that aspects of Scouts Canada’s dealings with Mr. Hannan might form the basis for damages for age discrimination if considered in a different forum, as well as Wallace damages (i.e. damages for bad faith conduct or unfair dealing in the course of a wrongful dismissal), or punitive damages if they were pursued by Mr. Hannan. Mr. Hannan did not claim for these categories of damages.

Takeaways for organizations

Courts will not impose a contractual relationship between an organization and its volunteers in every case. This decision simply provides a cautionary note of the resulting rights and responsibilities which flow from relationships between certain organizations and the volunteers they engage when such a relationship is deemed to be contractual in nature.

In circumstances where organizations’ actions are procedurally unfair in their dealings with volunteers, or organizations do not abide by their own policies or procedures, this decision also serves as a reminder of the consequences from certain failures on the part of an organization.

Organizations who engage volunteers should take note of the following:

• While generally speaking, volunteers are not considered employees under applicable employment standards legislation, organizations still owe a host of legal obligations to their volunteers.
• Organizations should be mindful of the scope of their existing policies and procedures and whether these policies and procedures apply to their volunteers.
• Much like employees, evidence is required to rely on warnings, coaching, or other disciplinary actions as grounds for further progressive discipline or termination.
• Decisions involving the status of volunteers, particularly where dismissal or non-renewal is involved, must be consistent with an organization’s policies and procedures as well as principles of natural justice.

Organizations are encouraged to reach out to our labour and employment team with any questions regarding the implications arising from this decision.

We are always available to answer any questions on what steps organizations can take in a specific case, and help you decide on the right strategic approach to respond to the issues raised.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the authors, or a member of our Labour & Employment Group.

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