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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic will discuss volunteer liability and what organizations can do to limit liability.
First, what is a volunteer? A volunteer can be defined as a person who freely engages in an activity to benefit 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 organize or help in his or her child’s recreational and educational group. Volunteers may provide services in an informal setting or in an organization or association.
Almost every activity has some level of risk involved. In order to limit a volunteer or organization’s liability, it is important to assess the risks of the activity and screen for time, skill, and the individual’s expectations. If the organization decides not to take a potential client, avoid the risk of a suit for negligent referral by giving the names and numbers of individuals or organizations that will meet the potential client’s needs.
Certain forms, if properly executed between the individual signing and the organization, can limit liability. However, it is important to note that these forms are not an absolute bar to liability. The specific circumstances of the incident will be considered in determining if damages are warranted.
Waivers: a waiver is signed by the individual who directly agrees to a risk and waives the volunteer or organization from liability. A waiver can help exempt the volunteer and organization from liability for many things. The waiver should be given to the participant (or in the case of minors, to the parent or guardian) with plenty of time to read the waiver, to think about it, and to ask questions before signing. Specifically, the form should:
- State clearly what risks are being excluded (e.g., liability for injury or for lost or stolen items)
- Be written in plain language for easy 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 (by printing specific risks in bold type or explain the form’s legal significance)
- Not attempt to exclude all negligence
Disclaimers: a disclaimer is similar to a waiver in that it is a written warning. However, a disclaimer does not ask the participant to agree or to waive anything. Instead, it is a clear statement that the organization refuses responsibility for a claim or act. It can indicate that there may be some level of risk, or that information may not be complete or accurate. When giving information or advice, a disclaimer can state that the advice provided should not be taken as accurate, complete, or up-to-date. The client will be considered to have been warned that it is unreasonable to rely solely upon the volunteer’s information.
Engagement and Non-engagement letters: Sometimes an organization may choose or choose not to represent a potential client after the first meeting. Engagement and non-engagement letters are great tools to ensure that there are no unknown clients hanging around. An example would be a person calling a radio guest for legal advice. The person who is receiving legal advice over the phone may believe that he or she is your client. An engagement letter will include things such as confirming the purposes for which the organization is hired, detail the scope of the services provided by volunteers, and list significant areas and items the organization was not hired to accomplish. A non-engagement letter will express in writing things such as why the organization cannot and will not represent the individual, and decline the representation clearly.
Consent Forms: the consent form is written evidence that the individual gives consent to the activity or risk. If something happens, the individual’s consent 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 will not protect the volunteer. Volunteers found liable in such a situation will be determined on the basis of a standard analysis of tort liability. The waiver may affect the standard analysis in some way, but does not have the effect of releasing the volunteer from his or her duty of care to the individual. Consent forms which are often used by volunteer agencies will not necessarily relieve the agency or volunteers of responsibility, particularly in the case of children.
The law of tort liability requires that a volunteer take reasonable care to avoid acts or omissions which are likely to cause harm to a neighbour. The law in this area deems that a neighbour is any person who is so closely and directly affected by a volunteer’s action or inaction that the volunteer ought to have taken into account the risk that their act or omission would have on that person.
This principle is of particular importance to volunteers who are involved with children or dependent adults. In conducting activities, volunteers have to take into account the intelligence and experience of the children, as well as the extent of disabilities of dependent adults together with the nature of the activities and the responsibility that is being undertaken.
Not all injuries which might occur will be compensated by the Courts. In order for an injured party to receive damages, the injury must have been reasonably foreseeable by the volunteer. With regard to injuries which are compensated, there are a number of factors which come into play in considering the amount of an award of damages. In terms of volunteer work, a Judge may often consider reducing an award 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. Whenever a volunteer is driving passengers and the passengers are not paying for this service, the passengers have no right to sue the volunteer in the case of an accident, unless the accident has occurred due to the gross negligence of the volunteer. However, if a volunteer is paid mileage by the sponsoring agency, this gross negligence requirement is not applicable. In this type of case, proof of ordinary negligence is sufficient for an award of damages to an injured party.
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. However, if you have created a dangerous situation, you do have a duty to act and seek assistance or attempt a rescue. On the other hand, if a person is being a Good Samaritan attempting to assist another, they would not be liable for injury unless there was negligence.
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 aimed at providing 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 403-541-4804 for further information.
Volunteers often acquire information on the understanding that it will not be passed on to other persons. This could include medical information or other personal information which could be considered confidential. In order to limit volunteer liability, organizations should make volunteers aware of confidentiality issues and determine whether the entire organization is doing all that it can to maintain confidentiality. A volunteer or organization may be liable for failure to avoid potential conflicts of interests or keep confidentiality.
Volunteers who are professionals can be liable for untrue statements which they communicate. Lawyers, for example, must carry insurance coverage to protect their clients from negligent acts and must pay into an assurance fund which compensates clients for the negligent acts. The Law Society of Alberta Code of Professional Conductrequires a lawyer to immediately correct inaccurate information that has inadvertently misled his or her client or another lawyer in order to prevent inadvertent misrepresentation. Generally speaking, unless a volunteer is a professional person, they are unlikely to be held responsible for giving incorrect or unsound advice. Non-professional volunteers are likely not accountable for their services, as there may not be any governing or regulatory body to set or maintain standards of their services or require them to have liability insurance. Nevertheless, volunteers need to be careful when they are communicating information received in the course of their volunteer activities to maintain a client’s confidentiality. They should also refrain from giving personal opinion or advice to clients to limit liability claims.
There is one important exception to the rule regarding confidentiality. If a volunteer received information that gives a volunteer reasonable grounds to believe that an activity has occurred and an individual or group is in imminent danger of death or serious bodily harm, the volunteer may disclose confidential information to the local police service or other relevant authorities.