April 12, 2018
Authors: Loretta Bouwmeester, Partner
Volunteers. Volunteerism. They both matter. Without them Canadian society would suffer. But, when are volunteers “workers” for the purpose of OHS legislation? What is the effect of this? How do you keep volunteers safe and otherwise manage risk effectively? What, in fact, are the risks? These are questions that we have been asked and are happy to answer.
Some volunteers carry out their work outdoors in safety sensitive positions performing dangerous work; others, indoors in low risk activities. Some volunteer for very sophisticated, large and experienced not-for-profit organizations, while others take it upon themselves to help out their neighbours and communities in response to natural disasters or simply for the betterment of their community. In either scenario, the greater the potential and severity of harm, the greater the obligations on the volunteers providing the services and those supervising them. Properly identifying hazards and using effective controls is a mutual responsibility from a moralistic and humanistic perspective. What about a legal one?
The short answers to your questions are:
OHS convictions and penalties are expensive. In addition to the humanistic and moralistic aspects, the internal and external resources put into managing the underlying incident (including paying for external legal and other help), means that an OHS fine or administrative penalty can cost tens or hundreds of thousands of dollars in hard costs – and, more recently, in a non-volunteer context, exceeding a million dollars in some jurisdictions for direct penalty amounts. These significant penalties can deeply affect an organization and even threaten its viability, whether that is financially or otherwise – something that charitable and not-for-profit organizations can ill afford: first, from a reputational perspective and second, from the perspective of regulatory enforcement actions getting in the way of the organizations being able to meet their goals and objectives.
There are relatively few cases where an organization has been charged for the death or injury of a volunteer. There are many more cases where a non-worker member of the public has been injured and the organization that caused it has had orders issued against it, been charged, prosecuted, and/or otherwise been subject to punitive action. The principles in those cases apply to situations involving volunteers.
While there has not yet been a successful Criminal Code prosecution of a volunteer, or the organization that they are providing services to, there is the potential for one. Given the OHS risks on both regulatory and criminal legislation fronts, it is helpful to canvass a couple of the cases where there has been the prosecution of a volunteer organization and a director and also where three fire services (with volunteer fire fighters) were charged.
In 2008 the Parry Sound Snowmobile District (PSSD), a not-for-profit club, was fined $35,000 in the 2007 death of a trail groomer. The PSSD pled guilty to a charge of failing to have a written occupational safety policies procedure guide. The Crown withdrew the remaining three charges against the PSSD. It also withdrew all charges laid against the snowmobile club’s former president (who was a volunteer board member). This case illustrates an example of a not-for-profit organization with a volunteer board being charged.
R. v. Port Colborne (City), R. v. Harrison and, Ontario (Ministry of Labour) v. Meaford and District Fire Department all involve emergency responses and the death or serious injury of one or more volunteer fire fighters. In all three cases multiple charges were laid, but none resulted in a successful prosecution. What these cases highlight is the prosecution risk that hazardous service activities pose when volunteers are involved.
Again, it depends on where the services are being provided. In Ontario, under the Occupational Health and Safety Act, a worker is defined, in part, as being a “person who performs work or supplies services for monetary compensation”. Although this definition does not include volunteers, the Ontario Ministry of Labour states that employers still have some responsibility for the health and safety of people visiting or helping out in their workplaces.
In contrast, Alberta’s Occupational Health and Safety Act (“OHSA”) applies to any person engaged in an occupation (i.e. worker, other than a student or in limited cases persons working in a farming or ranching operation). The OHSA defines an “occupation” as every “occupation, employment, business, calling or pursuit over which the Legislature has jurisdiction”. Limited exceptions are set out in the OHSA that will take effect in June 2018 for farming and ranching operations and homeowners that are doing work on their own homes. This broader definition of occupation is intended to ensure that all persons engaged in work activities are protected under the OHSA other than the limited exceptions identified. Given that a worker doesn’t need to be paid in order to be protected under the OHSA, the OHSA also applies to volunteers.
However, determining if and when a volunteer is a worker can be difficult, as is recognized by the government in its own website. It emphasizes that each situation needs to be assessed individually, stating that “In order for Alberta’s OHS legislation to apply, a worker needs to have an employer. The employer in this case is the organization on whose behalf the volunteer provides some type of voluntary service. When assessing a particular situation to determine if there is a worker-employer relationship, three conditions need to be met:
In British Columbia the Worker’s Compensation Act (WCA) applies generally to all “workers”. The term “worker” is defined broadly and includes virtually any individual who, like in Ontario, is paid for services rendered and does not employ other individuals. While the WCA does not explicitly refer to volunteers, the WorkSafeBC Assessment Manual states that “volunteers or other persons not receiving payment for their services are generally not workers.” Workers’ Compensation Appeal Tribunal (WCAT) decisions have found that both cash and “non-cash” payments (e.g. ski lift pass, gift certificate, even food and beer) are enough for an individual to be considered a “worker”. However, in at least one decision, WCAT found that providing a place to live and food were not enough consideration to turn a volunteer arrangement into an employment relationship. Nevertheless, in each case WorkSafeBC will review the specific circumstances to determine whether or not an individual is a worker or volunteer, on the basis of the nature of the relationship between the parties, the nature of the work performed, and the amount of remuneration offered in exchange for the individual’s services.
In summary, any organization – a not-for-profit or otherwise – can be charged as a result of an incident if it is an employer and employs “workers”. Workers can also be charged. In a province like Alberta, this can happen whether or not the worker is a volunteer and whether or not they are being paid.
They have the right to provide services in a safe environment and an obligation to refuse unsafe work if they are asked to do it. The challenge is that they may not recognize that the work is unsafe if it is something that they do not have experience with. Organizations need to take this into consideration and be careful with what they ask volunteers to do.
What can be taken from the legislation in Alberta, and any other legislation where volunteers are captured in the definition of “worker”, is that the more direction and control an organization has over the volunteer, the greater the legal obligations. The riskier the activity that the volunteer is participating in, the greater potential there is for a prosecution and a fine or other penalty. It is for this reason that services provided for free are still not going to help the organization in the long run if the risks are not properly managed in the short-term and on the front end.
Here are five tips for effectively managing risk:
Ultimately, volunteers and volunteerism should continue to be embraced. However, effectively managing OHS risks associated with their related activities is to the benefit of all parties involved.