Like most employment lawyers, I have numerous charitable organizations as clients. As well as having paid employees, such organizations rely heavily on volunteers to advance their worthy objectives in the community.
They also depend on the fact that volunteer relationships do not come with the handcuffs of contractual relationships (as do, for instance, employment relationships). Now and then, however, a judge or other adjudicator interferes with that dynamic, as was the case with a recent Ontario Superior Court of Justice decision.
When that happens, charitable organizations are worse off as a result.
The Beauty of Volunteers
Volunteers are an asset – and a necessity – for just about any charitable organization. While most such organizations do tend to have some paid staff to administer and organize operations, many couldn’t feasibly deliver services if they had to pay everyone.
Think of your local food bank, thrift clothing shop, homeless shelter, and larger organizations such as Habitat for Humanity and others. These folks achieve very good things in our community largely because they are able to make use of volunteers in many capacities. Scouts Canada is one such organization; as the Ontario Court recently described it…
“[8] Scouts Canada is a volunteer organization from top to bottom. It has a very small professional staff headed by a full time Executive Commissioner and CEO but all services and operations are delivered by volunteers and the organization is ultimately governed by a volunteer Board of Governors. The fundamental purpose of the organization is to support the objectives of the Scouting movement in Canada and to provide opportunity to youth who enroll in the Scouting programs. There are Scouting programs for different age groups (currently known as Beavers, Cubs, Scouts, Venturers and Rovers).”
Because volunteers are… well, volunteers, not much valuable administrative time and effort has to be expended in dealing with their individual wants and needs. If they aren’t working out, aren’t fitting into the team, etc., they can be sent on their way with no strings attached. Or so you may have thought.
Hannan v. Scouts Canada – A Fork In The Road
Wayne Hannan sounds like a fantastic fellow, the kind of guy we would all like to have living in our neighbourhood. He is to be congratulated and praised for his many, many years of dedicated service to Scouts Canada. His history with the Scouts was summarized by the Ontario Superior Court of Justice…
“[1] The Applicant is 86 years old and until the events in question, was a member of Scouts Canada. He has been involved with the organization in a leadership role as a “Scouter” since 1958 and most recently, was a Scouter for the 115th Sea Scout Troop located in Ottawa. In November of 2023, his annual application to renew his volunteer status was denied by the Group Commissioner. He was notified that he would no longer be permitted to serve as a Scouter with the 115th.”
In response to the termination of his volunteer relationship with Scouts Canada, Wayne commenced a civil action in court. In weighing whether or not a civil remedy was available to Wayne, the Court stated…
“[3] … The critical question, however, is whether or not this issue is justiciable. Should the Court assume jurisdiction and intervene in the internal affairs of a private public service organization? If so, what is the appropriate remedy?”
You see, just because a person is aggrieved by the actions of another person or an organization does not mean he/she automatically has access to the courts to obtain a civil remedy. The Court recognized the hurdle confronting Wayne, stating…
“[35] … [B]reach of internal rules and regulations or other process defects do not in and of itself create a significant legal right. These will be recognized as legal rights if the agreement to follow the internal rules is found to be contractual or if some other legal right is at stake.”
So, If It Looks Like A Contract…
The Court then embarked on a review of the circumstances of the relationship between volunteer Wayne and Scouts Canada to determine if the volunteer relationship was “contractual” in nature. I’ll save you the details; it may suffice to say that it appears (rather oddly) that no actual “test” was utilized by the Court.
Instead, the Court effectively pointed to a number of aspects of the relationship and decided that because they looked contractual in nature, the relationship must have been contractual (and, hence, Wayne’s claim against Scouts Canada could proceed in court). The Court touched on the fact that Scouts Canada is a corporation, that Wayne was a member of that corporation, that there were by-laws and policies such as a Code of conduct to which volunteers were expected to adhere, that his volunteer relationship was very important to Wayne, that Scouts Canada “induces” individuals to volunteer by offering “important and rewarding opportunities to promote the skills, traditions and values of scouting to Canada’s youth”, etc., and concluded…
“[44] Given, the structure of the organization, the commitment by all members at all levels to live by the Code of Conduct, Scout Law and the well publicized policies and procedures for volunteers, I conclude that the relationship of the members to the organization is contractual in nature and the Applicant was entitled to rely upon those policies and rules.”
Having arrived at this conclusion, the Court determined the following.
“[64] I conclude that the refusal to renew the Applicant as a Scouter for alleged cause was wrongful termination of the Applicant’s volunteer status and therefore his membership in Scouts Canada. If there were performance concerns or reason to believe the Applicant had breached the Code of Conduct then the applicable policies should have been followed and the Applicant should have been allowed to challenge those assertions in the manner set out in the policies.”
“Wrongful termination” sounds suspiciously like an employment-related term to me, and this is my concern with the Ontario Court’s decision. It has moved volunteer relationships much farther along the spectrum towards employment relationships, and that’s a bad thing if yours is a charitable organization.
Worse, the Court achieved this outcome by applying what I call the “if it quacks like a duck” form of reasoning. In doing so, it cited (but largely seemed to ignore) some recent Supreme Court of Canada decisions on this precise topic. In 2021, the Supreme Court of Canada, in Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, stated…
“[21] … Many informal agreements that people undertake do not result in a contract. There are, for example, mutual undertakings between friends (“in the new year, we’ll go to the gym together three times a week”) or between members of a household (“you do the groceries, I’ll clean the kitchen”).
[22] Without more, neither of these agreements creates a contract. What is missing is an objective intention to create legal relations. In neither of these examples do the parties (reasonably understood) intend to be subject to adjudication as to the performance of their commitments or to the imposition of remedies such as damages or specific performance.
[23] This is so not merely for individuals dealing with one another. It is also true for individuals coming together in voluntary associations. Such associations are vehicles to pursue shared goals. To this end, many such associations will have rules, sometimes even a constitution, bylaws and a “governing” body to adopt and apply the rules. These are practical measures by which to pursue shared goals. But, they do not in and of themselves give rise to contractual relations among the individuals who join. The members of the local minor hockey league, or a group formed to oppose development of green spaces, or a bible study group, for example, do not enter into enforceable legal obligations just because they have joined a group with rules that members are expected to follow.
[24] The practical wisdom embodied in the common law is that much of what we agree to in our day-to-day lives does not result in a contract. Where there is no contract, or other obligation known to law, there is no justiciable interest and no cause of action.”
Back to Wayne and Scouts Canada, the Ontario Court seems to have entirely missed the requirement that – for the relations to be contractual in nature – the parties must have had “an objective intention to create legal relations”. Instead, the Court – in deciding that their relations looked contractual, fell into the “if it quacks like a duck” trap.
What the Ontario Court was required to do was to assess whether the parties intended to engage in contractual relations and – if so - to consider whether the question before it (Wayne’s status as a volunteer) was justiciable. It really didn’t do so, and charitable organizations are worse off for it.
The duck has quacked. As much as I admire Wayne’s decades of service to Scouts Canada, for the sake of volunteer organizations across this country, I’m hoping Scouts Canada quacks back with an appeal of this decision.
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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.