Exploring Volunteer Rights – Wrongful Termination of Volunteer Status

Background

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.