Many charities would be surprised to learn that a court would intervene in an internal decision about whether to allow a volunteer to continue their work. However, that is exactly what the Superior Court of Justice on Ontario did in Hannan v. Scouts Canada.
A sympathetic court conveniently relied upon the principle that the governance structures of voluntary organizations may contain contracts which their members and volunteers can enforce against the charity. Hannan is a logical extension of the Supreme Court of Canada’s decisions about contracts in charity governance, as discussed in my articles, “Why it matters that the Supreme Court decision reinforced the existence of hidden contracts in charity/nonprofit governance” and “A Triumph of Administrative Law: 2018’s Supreme Court of Canada Religious Freedom Cases“.
The Case at a Glance
The case centres around Wayne Hannan, a volunteer with the Ottawa Sea Scout Troop for a remarkable 65 years. In 2023, the Scout Commissioner determined not to renew Mr. Hannan’s volunteer status, prompting legal action.
The main question the court considered was whether decisions about the role of a volunteer justiciable? Put another way, can a court intervene in such a decision?
The court ruled that, because there was a contract between the volunteers and Scouts Canada, Mr. Hannan had a right to “assume that the organization will follow its stated policies”. Justice MacLeod notes that while courts are generally reluctant to second-guess the judgment of a voluntary association regarding the type of character or leadership skills it values, it does not necessarily have absolute discretion. The court found that Scouts Canada had failed to follow its own policies in Mr. Hannan’s case and ordered that a volunteer reapplication be processed in good faith, in accordance with the organization’s screening procedures.
Governance Factors Influencing the Court’s Ruling
In Hannan, there were three governance arrangements and one characteristic of the organization which likely influenced the court’s conclusion.
- Firstly, membership was tied to volunteerism, which allowed Mr. Hannan to apply as a member and not just a volunteer.
- Secondly, while not mentioned by the court in its decision, the Scouts Canada by-law specifically allowed the Board to establish Policies and generally required the Board to ensure those Policies are carried out.
- Thirdly, Scouts Canada had a number of Policies applicable to volunteers, their performance and discipline, which the court concluded had not been followed.
The characteristic which the court found particularly important was the Scouting movement’s emphasis and culture of adherence to rules, such as the Scout Law and a Code of Conduct for volunteers, which allowed the court to easily find that Mr. Hannan was aware of the by-laws, policies and the Code of Conduct and thus able to rely upon them.
Distinguishing Religious Organizations
Importantly, the court distinguished this case from others involving religious organizations, such as Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga (2021 SCC 22) (“Aga”) which I have commented on previously. The case does not meaningfully advance the current state of the common law with respect to the level of deference the courts are to pay to religious organizations. The court did comment that “[t]he Court will not adjudicate questions of religious dogma”; however, given Scouts Canada was not a religious entity, the comment is obiter dicta and not binding.
Unlike most other previous court decisions which found a contractual relationship, this court did not delve into whether there was any consideration in the contractual relationship, possibly assuming that Mr. Hannan’s long history of volunteer work and adherence to the organization’s policies sufficed as consideration.
Volunteer vs. Member : Key Implications
This case likely does not speak fully into the rights of any volunteer who is not also a member. In light of this decision, charities and not-for-profit organizations may wish to carefully consider with their advisors whom they wish to grant membership rights to in order to minimize the potential for granting rights to volunteers where none are intended.
There is a potential danger in linking volunteerism to membership. While this practice may have been expected and made sense fifty years ago, large organizations today should carefully consider whether granting membership rights to volunteers is necessary, or if other approaches can provide the same sense of engagement without the legal risks. A volunteer’s contribution should be acknowledged, but perhaps that does not always require full membership.
So, what does this case mean for charities and voluntary organizations?
Policies lie at the heart of this decision. However, this case should not prompt a wholesale abandonment of policies. Policies offer organizations flexibility, adaptability, and a structured framework for handling new challenges. They augment and flesh out by-laws. They can be changed quickly. Well-crafted policies help set guidelines for governance, discipline, and membership, among other things.
Instead, the Hannan case should encourage organizations to have a conversation with legal governance advisors about how to strike the right balance between discretion and guidance. This is best accomplished not just by redrafting policies, but by carefully considering what should be left unsaid or undocumented, specifically allocated to the discretion of an officer or the directors, rigidly embodied in the by-laws, corporate articles or trust documentation, left to regulatory or legislative provisions or placed in policies.
A regular review of policies is essential, as they can become outdated and/or conflict with current regulatory requirements, legislation, by-laws, insurance policies, or contracts. Policies adopted from external sources or downloaded from the internet may not always be fully compliant with local laws or the organization’s specific needs.
Above all, a policy must actually be enforced. A policy that is ignored or inconsistently applied can be more harmful than having no policy at all. Had Scouts Canada adhered to its own policies, the decision to not renew Mr. Hannan’s volunteer status would likely have been upheld.
Review Your Policies Today
Want to ensure your organization’s volunteer policies strike the right balance? Our governance experts can help. Contact Miller Thomson’s Social Impact Group for a consultation.
