Scouts Canada has existed for over 100 years and relies heavily on volunteers to further its mission and programs.

Mr. Hannan had volunteered with and been member of Scouts Canada since 1958, serving in a leadership “Scouter” role for much of that time. Scouts Canada has a rigorous screening process and extensive policies that, among other things, require annual applications, a criminal background check every three years, and progressive discipline or opportunities to address issues. Scouts Canada also promises to support Scouters and treat them fairly.

Mr. Hannan’s volunteer application for the 2023-2024 year was denied. The Group Commissioner who denied Hannan’s application wrote a letter explaining the reasons. The denial was a ‘follow up to previous conversations from December 2022’ and ‘due to safety concerns and resistance to program adaptation.’ Mr. Hannan claimed to have no knowledge of these issues. Scouts policy required that discipline and performance management be conducted in every case except when a volunteer’s behaviour justified immediate suspension. Mr. Hannan was not subject to progressive discipline or management; instead, his annual application to serve as Scouter for his usual group simply wasn’t accepted.

It’s interesting to note that Mr. Hannan only claimed that Scouts Canada failed to follow its own policies and procedures when it declined his annual application without any performance management, and all he sought was reinstatement as a Scouter. In essence, he was making a claim on procedural fairness grounds. He did not claim an employment-type relationship with Scouts Canada. Rather, it was the court that took the case in that direction.

Was the issue justiciable?

Before the court could decide whether the Scouts process was fair, it first had to determine whether it was “justiciable”; that is, whether the court had jurisdiction over the issue at hand. Was the issue sufficiently concrete for the court to intervene in a non-profit organization’s internal affairs?

Scouts Canada argued that the discipline and suspension policies didn’t apply here because a Group Commissioner has complete discretion whether to renew volunteer Scouters or not. They also argued that Mr. Hannan’s membership had not actually been terminated – he simply couldn’t be a Scouter for this particular group – and that its policies and procedures for volunteers do not create a legally binding relationship, particularly a long-term contract, between Scouts Canada and the volunteer.

The Court noted that failing to follow internal rules does not automatically allow courts to intervene; it’s only if those internal rules engage an existing legal right. For example, if directors are elected at an improperly called board meeting – if proper notice was not given, quorum was not achieved, or some other defect, members can challenge those elections and a court may intervene to ensure the decisions made follow the legal requirements and the organization’s bylaws. However, a court will not typically involve itself in decisions of a religious or spiritual nature, like whether or not a member engaged in heresy, because that is not a sufficiently legal question for a court to decide.

In this case, the court further noted that Mr. Hannan was well aware of Scouts Canada’s internal policies and procedures and that there was “no doubt that members expect to adhere to the codes and policies themselves and expect that their relationship with the organization will be governed by those policies”. Scouts Canada’s progressive discipline policy implied that unless the volunteer’s conduct was egregious, they would have an opportunity to remedy concerns of poor performance; otherwise, renewal will normally be granted.

Finally, all Scouts Canada volunteers are also members, so terminating a volunteer from their position would also terminate their membership in the organization. It noted that the “court is not being asked to measure incorporeal…values such as kindness or benevolence but concrete issues such as breach of policies and procedural fairness”, and those are well within the court’s authority. Scouts Canada’s internal practices were very legal in nature, mirrored workplace practices, and appeared contractual, not merely aspirational. With these factors in mind, the court found a contractual relationship existed between volunteers and Scouts Canada and held that the matter was justiciable.

Procedural Fairness

The court first addressed the issue of procedural fairness by looking at the evidence provided. Scouts Canada relied on hearsay – evidence from someone without firsthand knowledge of the events – instead of the Group Commissioner who declined Mr. Hannan’s application. Mr. Hannan’s own evidence contradicted Scouts Canada’s, and he provided affidavits from parents who expressed shock at the Group Commissioner’s decision and concern that it had not been made transparently. Based on this evidence, the court concluded that the letter to Mr. Hannan, which set out the reasons for his non-renewal, were untrue and misleading.

Next, the court held that the Group Commissioner could not arbitrarily decline an application. Past practice and internal policies dictated that unless a Scouter had failed to carry out their responsibilities or failed on an aspect of the application – missing a vulnerable sector check, for example – then renewal would ordinarily be granted. Scouts Canada had alleged poor conduct but failed to follow its own progressive discipline policy, failed to provide adequate evidence of poor conduct, and failed to give Mr. Hannan opportunity to respond to the allegations or adapt his behaviour.

Conclusion

Based on the above, the court took jurisdiction over the issue; concluded that the letter to Mr. Hannan was untrue and misleading; and held that a decision to not renew a volunteer on allegations of unsatisfactory performance appeared disciplinary and was wrongful termination of his volunteer status.

Mr. Hannan was entitled to recovery of his legal costs on a substantial indemnity basis for around $50,000. Substantial indemnity costs are generally 70-90% of all reasonable legal costs and reflects how decisively the court found in Mr. Hannan’s favour. The court also gave Mr. Hannan declaratory relief that if he applied for a Scouter position again, his application be reviewed ‘appropriately and expeditiously’ and be granted unless valid reasons existed for non-renewal.

Takeaways

A primary takeaway from many cases is to follow your own by-laws and policies, and this one is no different. It is essential that you provide all volunteers with procedural fairness by adhering to the policies and procedures you establish. Not only do internal policies set clear expectations and processes, they can be a key component for encouraging individuals to volunteer with your organization in the first place. In this case, the policies also helped create a legal relationship between the volunteer and the organization, which attracted further scrutiny and protections.

Another important takeaway is to ensure that any decision to remove or not renew a volunteer is properly documented with adequate reasons provided, particularly when poor behaviour is alleged.

Finally, examine whether your bylaws create a direct relationship between volunteering and membership. The outcome of this case may have been significantly different had volunteering and membership within Scouts Canada not been so strongly linked together.

The post Exploring Volunteer Rights – Wrongful Termination of Volunteer Status appeared first on CCCC Blogs.

Mr. Zanette was a long-time volunteer for the Ottawa Chamber Music Society, or Chamberfest, a not-for-profit that puts on a number of musical events throughout the year. He was aware of and agreed to a number of Chamberfest policies, including its dress code, which prohibited the alteration of name tags. Even so, he placed a rainbow flag sticker on his name tag while volunteering as an usher at a 2019 event. A representative of Ottawa Chamber Music Society (OCMS) asked him to remove the sticker from the name tag in accordance with the dress code. Mr. Zanette eventually removed the sticker and continued to volunteer with Chamberfest without the issue being raised again. Later, he filed a human rights complaint alleging that the OCMS’ direction to remove the sticker from his name tag was discriminatory on the basis of sexual orientation, gender identity, and gender expression.

For his complaint to be successful, Mr. Zanette had to demonstrate prima facie discrimination by proving three elements:

1. That he has a characteristic that is protected by the Human Rights Code of Ontario (the Code);
2. That he suffered disadvantage or an adverse impact of some kind; and
3. That the protected characteristic was a factor in that disadvantage or adverse impact.

While Mr. Zanette is undoubtedly a member of a Code-protected group (sexual orientation, gender identity or gender expression), that alone was insufficient for finding prima facie discrimination. The Tribunal noted that not all differential treatment is discriminatory. Rather, the actions in question – here, asking for the rainbow sticker’s removal – have to engage the right to equal treatment in a substantive sense. That means actions that are arbitrary or “create a disadvantage which limits opportunities, perpetuates prejudice and stereotyping, or fails to recognize pre-existing disadvantage”. An action merely being unfair does not engage Code protection; it must rise to the level of prohibited kinds of discrimination.

The Tribunal held that OCMS’ request was not direct discrimination because it was based on their dress code. This dress code applied equally to all staff and volunteers regardless of the cause being promoted. There was no evidence to suggest that it was arbitrarily applied to Mr. Zanette on the basis of his sexual orientation, gender identity, or gender expression.

The Tribunal then held that OCMS’ request was not indirect discrimination, which is when a requirement that appears neutral excludes or disadvantages a group protected by the Code, for the same reason: this dress code applied equally to all staff, volunteers, and causes. There was no evidence that any staff or volunteer had ever been allowed to alter their name tag.

Finally, there was no evidence to show that wearing a rainbow sticker was necessary for being a member of that community. Therefore, being asked to remove it because of a uniformly applying dress code did not amount to substantive discrimination under the Code, and the application was dismissed.

Conclusion

So, can dress codes be discriminatory? Potentially yes, if they are applied arbitrarily or unfairly. This decision is an important reminder that volunteers can file human rights complaints and that any dress code should be clearly written, consistently applied and enforced, and that volunteers need to be made aware of any dress code in advance. Allowing a volunteer to promote one cause or another will likely mean that all must be allowed, or a claim for substantive discrimination could succeed.

The post Can A Dress Code Be Discriminatory? appeared first on CCCC Blogs.

The Act recognizes the vital role of volunteers and non-profits in the community. The government’s goal with the legislation is to remove regulatory barriers faced by organizations by allowing for “one-time exemptions from regulations, if an exemption does not already exist.”

It also aims to remove barriers faced by volunteers afraid of personal liability by enacting new liability protections for volunteers who act within the scope of their volunteer responsibilities.

Regulatory Barriers

The Act allows non-profits to make a request to the Minister for an exemption from a specific regulation, for a specific and limited time and for a specific charitable purpose. The Lieutenant Governor in Council may exempt a non-profit from any regulations made under any other Act (except those that apply only to non-profits).

The idea is that non-profits are often subject to regulations that are developed with for-profit businesses in mind. Because of this, regulations sometimes just don’t fit with how non-profits work and can inhibit good works from benefiting the community.

In debate, the Minister provided a real-life example of the situation this Bill is meant to address. During a cold snap, a congregation invited the homeless community into its church building, but because there was no exemption to allow for overnight stays of this sort, they had to create an all-night café so those in need could stay in the warmth of the church.

Volunteer Liability

The Act limits claims for damage based on an act or omission of a volunteer. It would protect volunteers from liability if the volunteer was acting within the scope of his or her responsibilities and was properly licensed, certified or authorized for those activities.

The protection does not apply if the damage was caused:

• by wilful, reckless or criminal misconduct or gross negligence
• while the volunteer was driving a vehicle
• by an act or omission that is an offence
• while the volunteer was unlawfully using or impaired by alcohol or drugs

The protection is for the volunteer only – it does not impact the organization’s liability. In the event that damages are awarded against or paid by an organization because of a volunteer, and the volunteer is protected under this act, the organization cannot recover those damages from the volunteer.

Implementation

To support the Act, the government plans to create a centralized website that lists all of the existing regulatory exemptions. There are many, but they are often difficult to find. The idea here is to increase awareness of existing exemptions. The website would also have a form to apply for the one-time exemptions allowed in the Act. These exemption applications will be reviewed to determine if any should be added as a permanent exemption.

The Bill does not provide a specific time-frame on how long approvals might take, or whether a charity could apply for the same exemption at a later time.

If passed, Bill 58 would take effect on September 1, 2021. The government encourages non-profits to call 310-0000 for general inquiries about existing exemptions.

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