Volunteer Liability

When a waiver is signed, the person signing the waiver agrees to certain risks and waives the right to sue the volunteer or organization for injuries sustained in the listed circumstances. The waiver should be given to the participant (or in the case of a minor, to the parent or guardian) with sufficient time to be read, understand, and ask any questions before signing. Specifically, the form should:

• State the risks that are being excluded (e.g. liability for injury or lost/stolen items);
• Be written in clear, plain language for ease of understanding;
• Apply to a particular situation (e.g. a particular field trip or the duration of the training that will be conducted on and off the premises);
• Be clearly understood by the person before it is signed (e.g. by printing specific risks in bold type, requiring initials for certain sections, explaining the legal significance of any onerous or unusual terms); and
• Should not attempt to exclude gross negligence or recklessness. Negligence may be an honest mistake; however, a mistake that could have been avoided if the person had been acting reasonably. Gross negligence is more serious; it is a conscious and voluntary disregard of the need to act reasonably, knowing that a failure to so act could cause grave injury or harm. Similarly, recklessness is a conscious disregard for the foreseeable consequences of one’s actions. It may be possible to exclude liability for ordinary negligence, but the waiver form should not attempt to exclude gross negligence or recklessness, and attempting to do so will often be rejected by a court.

A disclaimer is similar to a waiver in that it acts as a written warning.  However, a disclaimer does not ask the participant to agree to waive any risks.  Rather, it is a written statement notifying clients that the organization will not be responsible for injury or losses the client might sustain by taking part in a certain activity. It can indicate that there is a level of risk to participating, or that information may not be complete or accurate. When giving information or advice, a disclaimer might state that the advice provided should not be taken as accurate, complete, or up-to-date. In this way, the client is considered to have been warned that it is unreasonable to rely solely upon the volunteer’s information.

An organization may decide whether or not to represent a potential client after the first meeting.  Engagement and non-engagement letters are tools to ensure that members of the public are made aware of whether or not they are being assisted by the volunteer or organization. An engagement letter will confirm the purposes for which the organization is hired, detail the scope of the services provided by volunteers, and list specific areas or items the organization was not hired to accomplish. A non-engagement letter will express in writing the reasons for which the organization cannot or will not represent the individual, and should clearly explain that the organization is declining to represent the potential client.

A consent form provides written evidence of a client’s permission for something to happen. For example, the client may consent to use of their information or photograph by the organization for limited purposes, to the participation of their child in a specified activity, or to take on a particular risk. If something occurs, the client’s consent acts as evidence of the client’s willingness to participate, the acceptance of those involved risks, and may protect the volunteer or organization from responsibility. However, if an act or omission is the result of the volunteer’s negligence in supervising the activity, the consent form is unlikely to suffice in protecting the volunteer or organization. A waiver would be required for such purpose.

All forms to be used by an organization should be reviewed by a lawyer. While costly at the outset, the expense of a lawyer may protect the organization from incurring significant losses in the future.

Awareness of a volunteer’s duty of care to clients is of particular importance to volunteers who are involved with children or dependent adults. When conducting activities, volunteers must take into account the intellectual capacity and/or level of experience of the participants, as well as any disabilities experienced by participants. With this in mind, volunteers should consider the nature of the activity and any risks involved. Forms used to limit liability would need to be signed by a parent or guardian, as a child or person with disabilities may not have the legal capacity to decide associated risks themselves.

Not all injuries that occur in the course of volunteer activities will be compensable by the courts. For an injured party to receive damages, the injury must have been reasonably foreseeable (i.e. likely predictable). When liability is found, there are several factors that a judge will consider when determining the amount to award in damages. A judge may consider reducing a damages award in the volunteering context in order not to discourage volunteer activity, which is generally seen as beneficial to the public.

Volunteers often use their private vehicles when providing volunteer services. In these cases, the organization may or may not be held vicariously liable for the volunteer’s negligence while driving. Vicarious liability is the attachment of responsibility to one person for the actions of another. If the use of a vehicle is central to the volunteering activity, the organization may be held responsible. However, it is not always clear. For example, when the volunteer is dropping off fellow volunteers or participants after the volunteering activity has concluded, a question may be raised as to whether this falls within the normal course of the volunteer’s work and/or is a designated responsibility of the volunteer. In either event, the volunteer should check their insurance policy to ensure that all passengers are covered while they are in the volunteer’s vehicle. The policy may also cover the organization for vicarious liability. Whether or not an insurance company will provide coverage may depend on the circumstances. For example, the insurance company may refuse to offer coverage if mileage is paid by the organization to the volunteer.

Someone who undertakes to rescue another person can be considered a volunteer. Generally, the law does not impose a duty on people to rescue others.

Volunteers often acquire information from clients on the understanding that the information will not be passed on to third parties. This might include medical information or other personal information that could be considered confidential. To limit volunteer liability, organizations should ensure that volunteers are aware of the need to protect the privacy of clients. A volunteer or organization may be held liable for breaching the privacy of a client. Alberta’s Personal Information Protection Act (PIPA) and the federal Personal Information Protection and Electronic Documents Act (PIPEDA) outline the duties and responsibilities that a private sector organization must comply with when collecting, using and disclosing personal information. Volunteer organizations should look to PIPA and PIPEDA for guidance when developing a comprehensive privacy policy.

There is an important exception to the rule of confidentiality. If a volunteer receives information that gives a volunteer reasonable grounds to believe that an individual or group is in imminent danger of death or serious bodily harm, the volunteer may be required to disclose confidential information to the local police service or other relevant authorities where it is believed on reasonable grounds that such information will assist in preventing the harm.

Volunteers who are professionals and are volunteering their professional advice or services continue to be held to the required standards of their profession. For example, lawyers continue to be bound by the Law Society of Alberta’s Code of Professional Conduct and may be held liable for professional misconduct if they fail to meet the standards of practice. An engineer signing off on building or renovation plans will be regulated as a member of APEGA. Generally, unless a volunteer is a professional, they are unlikely to be held responsible for giving incorrect or unsound advice. It is more difficult to hold non-professional volunteers accountable for their services, as there may not be any governing or regulatory body in place to set standards or require the volunteer to hold liability insurance. Nevertheless, volunteers must be careful when communicating information received in the course of their volunteer activities to maintain a client’s confidentiality. To limit liability, volunteers should also refrain from giving personal opinions or advice to clients where doing so would be inappropriate or require expertise that the volunteer does not have. Failing to do so may place the volunteer at risk of being found negligent.

Volunteers and organizations that depend on waivers and disclaimers should always retain a lawyer to determine when existing forms are adequate and offer specific advice on improving the form. Volunteer Lawyer Services is a program to provide eligible charitable organizations with pro bono (free) legal services and advice in non-profit and charitable organization management and board responsibilities.  To be eligible for these services, your organization must be registered as a charity or non-profit society, or be in the process of applying for registration as a charitable organization or non-profit society. Please contact Pro Bono Law Alberta at 403-541-4803, or email at vls@pbla.ca for further information.