Disclaimer: The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer through our lawyer referral service line.
This topic will discuss volunteer liability and the steps organizations can take to limit liability.
Who is a Volunteer?
A volunteer is a person who freely engages in an activity aimed at benefiting others in some way, without receiving monetary compensation. A volunteer can include a person who helps with their church or other charitable organization, or a parent who volunteers to assist with his or her child’s recreational or educational group. Volunteers may provide services in an informal setting or in an organization or association. A client or participant is a person who benefits from the work of the volunteer or organization.
If a volunteer and/or organization causes a client foreseeable harm, they may be liable (responsible) to the client in negligence. Given the type of work carried out by voluntary organizations, it is generally foreseeable that a volunteer’s work could impact others if they act negligently. As a volunteer, you should be aware of the level of care that is owed to any clients of the organization.
In order to limit a volunteer or organization’s liability (responsibility), it is important to assess the risks of the activity and consider time, skill, and the individual client’s expectations. If the organization decides not to take on a particular client because they do not feel the organization has the requisite resources to assist, the organization should provide the names and numbers of individuals or organizations that will be in a better position to meet the potential client’s needs.
Certain forms can act to limit liability if they are properly executed by the organization and the client. These forms include waivers, disclaimers, engagement and non-engagement letters, and consent forms. However, it is important to note that these forms are not an absolute bar to liability. Should an incident take place, the particular circumstances will be considered in determining whether liability ought to be found irrespective of the signed form. In addition, the circumstances in which the form was signed and the information communicated to the signatory prior to signing may also be considered.
Below are a number of common forms used in a volunteer-client relationship.
When a waiver is signed, the person signing the waiver agrees to certain enumerated 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 read and understand the waiver, and ask any questions before signing. Specifically, the form should:
- State clearly 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, albeit a mistake that could have been avoided had the person been acting reasonably. However, 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 clearly 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.
- Engagement and Non-Engagement Letters
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 set out clearly that the organization is declining to represent the potential client.
- Consent Forms
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 make a decision about associated risks themselves.
Not all injuries that occur in the course of volunteer activities will be compensable by the courts. In order for an injured party to receive damages, the injury must have been reasonably foreseeable (i.e. likely predictable). When liability is found, there are a number of 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 own private automobiles when providing volunteer services. In these cases, the organization may or may not be held vicariously liable for the volunteer’s negligence while driving. 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. Please see the Dial-A-Law topic 555 – Good Samaritan and Rescuing Liability for more information.
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. In order to limit liability, they 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. In order 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 email@example.com for further information.
Dial-A-Law is a Calgary Legal Guidance public service project funded in part by The Alberta Law Foundation.