'Organizations need to pay more attention to their volunteers and how volunteers are managed, how policies are applied'
In a recent Ontario Superior Court of Justice decision, Justice Calum MacLeod ruled in favor of an 86-year-old volunteer Scouter with Scouts Canada, after the organization chose not to renew his position without following its own policies on volunteer management.
The organization’s decision was “arbitrary, discriminatory and made for an improper purpose,” said MacLeod, who ultimately ruled in favour of Wayne Hannan, finding that Scouts Canada failed to follow its own policies when it terminated Hannan’s role.
“This isn’t a church bake sale, this isn’t a one-off [situation]… it’s an ongoing responsibility,” said Sean Grassie, an associate at Conway Litigation in Ottawa who represented Hannan, clarifying that Scouts Canada’s strict onboarding standards — given the 40,000 children involved — make it reasonable for the court to demand similarly structured offboarding procedures.
“If you're going to make somebody pass through all those hurdles just to get in, it also makes sense that you shouldn't be able to just boot them out without some kind of process in place — particularly where you said you're going to provide that process.”
Wrongful termination of long-time volunteer
Scouts Canada declined to renew Hannan’s role as a Scouter, citing “safety concerns and resistance to program adaptation.” Hannan, however, argued that he was not given a fair opportunity to respond or correct any issues, in violation of the organization’s volunteer management policies.
MacLeod noted in his decision that “if the disciplinary management procedure applies to his situation, it was not followed.” He added that “the progressive discipline and appointment of scouters’ policies applied to this situation,” affirming that the organization’s internal policies created a duty of fair treatment.
Scouts Canada had argued that the group commissioner held “complete discretion in renewing volunteer scouters,” but MacLeod rejected this argument.
“I conclude that the refusal to renew [Hannan] as a scouter for alleged cause was wrongful termination of [his] volunteer status and therefore his membership in Scouts Canada. If there were performance concerns or reason to believe [Hannan] had breached the Code of Conduct, then the applicable policies should have been followed and [he] should have been allowed to challenge those assertions in the manner set out in the policies.”
The court found that Scouts Canada’s failure to follow its policies in this case breached a “contractual” obligation.
Policies create contractual relationship
Scouts Canada’s bylaws link volunteer status to corporate membership, creating a legal hook that allowed the court to intervene, says Grassie.
“By not renewing Mr. Hannan’s volunteer status, effectively what they were doing was removing him from the corporation, and that engaged a legal right that he had a contractual right.”
Grassie explains that while there’s generally a clear distinction between employees and volunteers, this case signals that policies and procedures can create enforceable obligations, even in volunteer relationships.
“When there’s a give and take, a reciprocity between the volunteer… and the organization, that can be an indicia that there is a contractual relationship there, even if no money is being exchanged.”
This relationship of mutual benefit is what allowed the court to find a contractual duty, he says.
“It signals towards organizations that even if you’re not paying somebody and you don’t have an appointment contract with them, you nevertheless could unwittingly enter into a contractual relationship with them, just based on the fact that there’s an exchange of value there — and that could give rise to obligations on both sides [such as] basic fairness.”
Finding of contractual framework ‘quite remarkable’
The finding of the contractual framework, as they call it, “is actually quite remarkable,” says Allison Buchanan, senior associate, employment and labour, at Dentons in Toronto.
“It was mostly to do with the relationship of the policies, the internal policies, and the fact that they were so robust, and their application to the type of work, the type of volunteering, the type of services that was conducted by the volunteers.”
As a result, it’s possible the court has opened up the relationship between volunteers and Scouts Canada — and other organizations — to all sorts of legal rights that flow from a contractual relationship, she says.
“When I think about contractual relationships, immediately, I think about the duty of good faith and fair dealing, which is an implied duty in all contracts and which, at a minimum, imposes a duty... not to lie or be misleading, in the performance of the contract; and an obligation to exercise contractual discretion reasonably and not be unduly insensitive.
“As a result, I think this decision has expanded our traditional notion of a volunteer’s relationship with this organization, and imputed some serious legal principles into it.”
Hannan’s efforts were not simply passive volunteering, like in a social club or a church congregation, and demanded a significant ongoing commitment on his part, which is similar to an individual's commitment to an employer, says Buchanan.
“So, I do think that the door has at least been nudged open there, and I think it will be interesting to see how this decision is applied going forward, and whether or not it will allow the expansion of employee rights into the volunteer realm.”
Drawing line between employees, volunteers
As someone who's on a board of directors, it was good to see that there was a very clear decision that these people weren't employees — but there was a breach of contract, says Sheryl Johnson, partner, employment and labour law at Sullivan Mahoney in Niagara Falls, “especially when they're so regulated, and you have all your bylaws and your rules of conduct and your screening and your applications every year… they've created a process, and it's that process that creates the contract.”
There has to be very clear demarcations between who's a volunteer and who's an employee, whether it’s for collective bargaining purposes or at organizations the rely heavily on volunteers but could never afford to pay them, she says, adding a lot of volunteers don't want to be considered employees and aren't looking for compensation.
There have been times when employment standards have “crossed the line” and made volunteers employees, she says.
“So, a takeaway for employers is they have to be very careful with regards to how they structure things, with regards to notifying persons that they're not employees and that they're volunteers, ensuring that there's not a lot of compensation and that there's no blurring of the lines between employees and volunteers.”
The Scouts case is really about establishing that there are contractual rights, especially since they're a corporation, and they were created by statute, which puts obligations on the volunteer board of directors, says Johnson.
“A lot of the boards who are making the decisions from the top, and applying the policies and deciding whether to amend the policies or not, they have to understand the difference between a volunteer and an employee. They have to understand due process. And I find a lot of them just want to make decisions, and they don't actually want to follow or even know what the policies are.”
Procedural compliance, communication key to fair treatment
Grassie underscores that better communication and adherence to procedures are essential for ensuring fair treatment, particularly when disciplinary action is involved.
“There needs to be a process in place,” he says, adding that documented evidence of any alleged misconduct and proper feedback are essential parts of this process, “whether it’s in the employment context or the volunteer context.”
That gives the people in the charge the opportunity to raise those issues directly and keep documentation of any interactions with the volunteer or employee, “so they’re given the opportunity to correct the behaviour, and if they don’t, then they can suffer the consequences.”
Scouts Canada actually said the group commissioner was able to make this decision regardless of its policies, says Johnson.
“To me, that's a certain level of incompetence or ignorance with regards to what the rules are and how to follow them. And I think a lot of this could have been avoided if the volunteer board of directors were trained better, and they understood what their obligations were, and they read the policies, and they understood the policies and they applied them with due process.
“I think that often is what gets missed when people just make rash decisions without grounding [them].”
‘Don’t take volunteers for granted’
This case is a good reminder to not take volunteers or the relationship to your organization lightly, says Buchanan: “You’ve got to train your people, you have to train management, you have to train decision-makers to follow these policies when they're there.”
Any organization managing any sort of discipline or major decision — such as a termination or non-renewal — should ensure policies are followed, and be careful about the messaging, she says.
“You want that clear record of warnings and coaching and disciplinary actions like this — those are going to be crucial to being able to justify your decision.
“In this case, Scouts Canada got in trouble for claiming there were safety concerns and a resistance to change when there was no evidence of that… in the volunteer realm, it would be totally natural for that to be a little less scrutinized. And this case is a really good reminder to be very careful about that.
And hopefully organizations won’t pull back on hiring volunteers because of decisions like this, says Buchanan.
“I would hate to think that the baby would be thrown out with the bath water on this because … volunteers are hugely valuable in so many organizations,” she says.
“But I do think that organizations need to maybe just pay a little bit more attention to their volunteers and how their volunteers are managed, how policies are applied, how things are handled… organizations should just not take their volunteers for granted. They should be aware that there's actual legal redress if policies aren't properly adhered to.”
