Many not-for-profit organizations simply don't have the resources to hire employees and so could not operate without the generous efforts of countless volunteers. This unpaid workforce has important legal rights which, if not respected, can needlessly lead to litigation. Apart from the significant cost and time required to defend a lawsuit, the story itself likely would be sufficiently novel so as to find its way into the media, and serve to disprove the old adage that "all publicity is good publicity".
As a result being prepared instead of making unforced errors is crucial for ongoing success.
Wayne Hanna and Scouts Canada
Wayne Hanna was 86 years old. He had been a dedicated volunteer with Scouts Canada for an incredible 65 years, when he unexpectedly received devastating news in the mail. Scouts Canada had written him, rejecting his annual application to volunteer. The letter claimed to be a "follow-up to previous conversations" starting in the last year, and said his rejection was "due to safety concerns and resistance to program adaptation."
Mr. Hanna was aware of no previous conversations, safety concerns or resistance to program adaptation. He had received no warnings, suspensions or anything to suggest anyone had any concern whatsoever with his performance. He was gobsmacked by this rejection from Scouts Canada. Those who knew him likewise were shocked.
Mr. Hanna hired a lawyer and sued Scouts Canada. Central to his case were the organization's detailed and sophisticated policies addressing conduct, performance management and progressive discipline of its volunteers.
On September 27, 2024 the Ontario Superior Court of Justice found in favour of Mr. Hanna and ordered as follows:
1. Scout's Canada's policies applied to Mr. Hanna and could support his claim;
2. Scouts Canada's assertion that Mr. Hanna had failed to meet performance standards or breached its Code of Conduct was completely without merit, and made for an improper purpose;
3. if Mr. Hanna wished to reapply to be a volunteer Scouts Canada was required to process his application expeditiously, in good faith and in accordance with the Court's decision; and
4. Scouts Canada was required to indemnify Mr. Hanna in full for his legal costs, which were more than $50,000.
How did the court decide this, and what lessons can be learned by any organization that relies on volunteers?
The Legal Basis for the Claim
Case law in Canada has long urged judicial restraint in assuming jurisdiction over the internal workings of benevolent organizations. However, even a not-for-profit that is more than a century old, and unquestionably deserves responsibility for much good work in Canada, is not insulated from the application of the law.
In 2018 the Supreme Court of Canada had dealt with a lawsuit by an individual who claimed he had been unfairly removed as a member of a religious congregation.
The court determined that a breach of the rules of natural justice, unfairness or a lack of due process would not alone support a legal cause of action. Rather, the aggrieved individual firstly must establish a legal right of some sort. This could include some private legal right based in property, contract, tort, unjust enrichment, or a statutorily-based caused of action.
Put a different way, being treated "unfairly" was not enough. Such mistreatment might be relevant in assessing whether an existing right had been breached but a claimant firstly must establish the existing legal right required to advance the lawsuit. Without that foundation a claim cannot proceed.
Still, even where the court found jurisdiction, restraint is necessary. A court will not adjudicate questions of religious dogma or second-guess the judgment of a voluntary association in assessing criteria such as character, leadership skills, degree of kindness or benevolence.
Application of the Law to Mr. Hanna and Scouts Canada
The court found on the facts there was no doubt Scouts Canada and its volunteers expected everyone to abide by the many policies that existed, and were applicable to a factual situation like this. While admittedly Mr. Hanna's livelihood did not depend on his status as a volunteer, this status was similar to and every bit as important as paid employment. That status derived from a contractual relationship on which Mr. Hanna could ground his claim, like an employee who could sue in wrongful dismissal.
Scouts Canada argued that even if there were a relationship based in contract, it simply was year-to-year and linked to the annual volunteer application. The court rejected that argument as overly simplistic. By past practice the relationship continued even while approval for a renewal application was pending. This suggested an ongoing relationship subject to possible lawful termination, as opposed to an annual relationship which automatically ended unless it were renewed.
The court accepted there could well be cases where a change in needs or a legitimate restructuring of the manner of delivering service could lead to a no-fault end to the relationship. There was no guarantee of security for lifetime. However, if non-renewal were based on alleged concerns the volunteer was not performing adequately or had engaged in misconduct, the established disciplinary process had to be followed. There was an implied condition that annual renewal would occur unless things had changed for legitimate structural reasons, or unless alleged performance issues were addressed as required in the policies.
Scouts Canada had argued it had the absolute discretion to decide as it chose, and so it did not have to justify its decisions on who was allowed to volunteer. The court rejected this argument. While particular volunteer roles could be altered or eliminated in a legitimate restructuring or reorganization, the performance management policies would be meaningless if Scouts Canada could still do whatever it wanted.
The court concluded Scouts Canada had wrongfully terminated Mr. Hanna's status as a volunteer. It found the termination letter particularly shocking, bearing in mind Scouts Canada knew it had no evidence to support the allegations. Making things worse was Scouts Canada "doubling down" on this by filing affidavit evidence based on unsupported hearsay.
The court described this as "deeply unfair" and demonstrating an "improper litigation strategy bordering on abuse of process".
Mr. Hanna had sought reinstatement, which the court declined to award. While not an absolute rule, specific performance of employment contracts was not generally available on the rationale that parties who do not want to work together should not be forced to do so. That was seen as equally applicable in this volunteer context.
The court noted that Mr. Hanna would be entitled to damages for breach of contract. However, unlike the wrongful dismissal of an employee where the employee was entitled to pay in lieu of reasonable notice, Mr. Hanna had suffered no economic loss. He was entitled to full indemnity for his legal costs however.
Importantly, the court seemed quite open to considering additional damages arising from bad faith conduct or unfair dealing. This could potentially be addressed by aggravated or punitive damages.
Aggravated damages compensate a victim for additional, exceptional harm suffered as a result of a defendant's misconduct. Punitive damages are designed to punish a defendant for conduct the court finds unacceptable, and can be ordered whether or not harm is actually suffered.
Mr. Hanna had not pursued such damages and so they were not awarded. Had he claimed them, however, it seems they likely would have been awarded.
Takeaways
While the policies of Scouts Canada were front and centre in this case, it would be an error to assume that liability could be avoided simply by having no policies. Contracts can be written, verbal or derived from actions of parties. Not putting something in writing does not avoid the possibility of a contract, but just creates less certainty. Generally speaking, problems most often happen in situations where there is an absence of clear policy, as that often leads to inconsistent and unfair decisions or treatment.
Properly developed and drafted written policies therefore are strongly encouraged, but this is not as simple as it sounds. Organizations would be well-advised to consider carefully what is most relevant to their operations, where the problems will most likely arise and how best to address things fairly and proactively. A review of history and some imagination can be helpful. You should not assume all stakeholders will agree on what "makes the most sense" or necessarily even act "reasonably" (whatever that means).
Issues to be addressed might include the selection, training and management of volunteers, ensuring quality control over the services they provide and so compliance with liability insurance requirements, and how to "fire" a volunteer.
It likely is best not to reinvent the wheel but simply copying and pasting from a precedent you find online and assuming that is "good enough" in terms of what is covered, and how, is a recipe for disaster.
What you find online may be a good starting point, but it should not be the endpoint. Instead, you need to consider your specific situation and what is needed. You also need to consider the context in which the precedent was created and so the particular issues that were or were not relevant then. Lawyers only use precedents as guidelines, and so should you.
There also is that little challenge of clearly capturing your thoughts, in writing. A badly worded policy usually is worse than no policy at all.
Once you get policies in place they should be followed.
No one expects perfection but whether or not expressly in policy, obvious and intentional misconduct such as occurred in Mr. Hanna's case invites legal action and costly remedy.
Finally, policies should be reviewed and updated on a regular basis to ensure they meet your present needs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
