OHS & Workers’ Compensation Advisor
Volunteers matter. Without them, and their many and varied contributions, Canadian society would not be the same. Weaker, less engaged, less empathetic, less caring overall potentially. 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 shovel walkways as “Snow Angels”. In either scenario, the greater the potential for and severity of harm, the greater the safety related obligations on the volunteers providing the services, the organizations receiving the services and those supervising them within those recipient organizations.
It’s important to understand there is real risk for organizations that use volunteer staff so that it can be proactively addressed and mitigated. It arises both from an OHS regulatory perspective in some instances, and from a civil liability (or lawsuit) perspective in all instances. Volunteers may also be included under an organization’s mandatory workers’ compensation coverage (depending on the industry and if the organization they volunteer for or with is a non-profit or for-profit entity). The reputational risk that arises with any legal proceeding must also be taken into account, especially where children or other persons can be negatively affected either in their capacity as the volunteer or as someone who directly benefits from the services provided. It is the former, not the latter, that is more the focus of this article that addresses OHS risks associated with the use of volunteers.
The Volunteer “Worker” – Yes, Your Organization has Legal Obligations to Them
Ultimately, a person volunteering their time for the good of an organization may very well be a “worker” in the eyes of the law. Not taking the time to understand the legal implications of that reality comes with risk. The amount of risk depends on the applicable law where the services are provided and what the volunteers are actually doing. You need to know the laws in your province or territory. It’s especially important to be familiar with the definition of “worker” in applicable workplace legislation. Also, whether or not the volunteer is federally or provincially/territorially regulated given the nature of the work of the organization.
Whether or not the volunteers are being compensated is key. If they are, and not just being reimbursed for expenses or receiving a nominal benefit, they are “workers” and the organization they are providing the services to is the “employer.” However, not every individual volunteering their time is a “worker”. That depends on if the organization has actually sought out and accepted the use of the volunteered services (formally or informally). For example, a person who is fundraising without the direct or indirect knowledge of the organization benefiting from the funds is not considered a volunteer (and/or worker) for that organization.
In British Columbia, Workers’ Compensation Appeal Tribunal decisions have found that both cash and non-cash (in kind) payments (such as ski lift passes, gift certificates, even food and beer) are enough for an individual to be considered a “worker.” 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 expressly 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 expressly applies to any worker engaged in an occupation, including those who perform or supply services for no monetary compensation. Volunteers are clearly included in the definition of “worker”, with all the associated rights and obligations applying to them, their supervisors, and the organizations they serve. The caveat to this is that volunteers in Alberta are not considered “regularly employed” by an organization for the purpose of determining if a health and safety representative or joint health and safety committee is needed.
There are also specific rules that apply when engaging students and “unpaid workers” or volunteers in certain industries, such as farming and ranching operations (certain individuals in this field will not be considered “workers”). Young and/or new workers need extra care and attention given their more limited life experience typically. Who is a young worker will vary across jurisdictions as is discussed further below, but the fact of being one should be taken into consideration when hazard assessments related to their work are carried out.
When Things Go Very Wrong – Prosecutions Involving Volunteer Workers
There are fortunately relatively few cases where an organization has been charged for a workplace death or injury involving a volunteer worker. 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. There have been a handful of successful prosecutions stemming from charges under occupational health and safety legislation (“quasi-criminal” prosecutions). There are also many more cases where a non-worker member of the public has been injured and the organization that created the unsafe condition leading to the injury had orders issued against it, was charged, prosecuted or otherwise subject to punitive action. One such case is currently before the Supreme Court of Canada and a decision on it will likely be issued in the Spring of 2023. See our article titled “Breaking with Traditional OHS Roles at Construction Projects? Ontario Court of Appeal Expands Potential Risk to Owners, Employers” for more information. The principles in those cases equally apply to situations involving volunteers in many instances.
The prosecutions of organizations for fatal or serious injuries of volunteers often involve emergency response scenarios and volunteer firefighters: R v Port Colborne (City); R v Harrison; R v The Meaford and District Fire Department; and, R v Corporation of the Township of Nipissing. In each case, multiple occupational health and safety charges were laid; however, only one resulted in a guilty plea and conviction.
In a different type of successful prosecution in Ontario, R v B. Ballin o/a Ballin Roofing, a young worker was tragically killed on a roofing project when the extension ladder he was climbing retracted. A volunteer on the project, with no previous roofing experience, had failed to engage the locks between the ladder’s two fly sections. It was held that the employer failed to take the reasonable precautions of providing training and adequate supervision of the volunteer. The penalty was two years’ corporate probation.
Had that accident occurred in Alberta, there very likely would have been a creative sentencing order in addition to corporate probation and potentially significant financial penalty to fund the order. The typical range for a financial penalty related to a fatality in Alberta is $275,000 to $325,000. Not-for-profit organizations and other charitable organizations can receive lesser penalties in some instances. Health and safety legislation in Alberta (and Nova Scotia) provide for “creative” sentences and they are routinely imposed when sentencing employers (which again, can include organizations that volunteers provide services to).
In Alberta, the Occupational Health and Safety Act contains a provision permitting a court to require a defendant to provide funds to a party for the purpose of training or educational programs, research programs, worker health and safety initiatives (by non-profit organizations), and other matters furthering the goal of achieving healthy and safe workplaces. In addition, the court can direct the defendant to take any other action the court believes appropriate. This is a very broad power providing great flexibility in fashioning the “creative” sentences referenced above. They have also led to corporations (including municipalities) being put on probation with terms that have required the corporation to submit to periods of enhanced regulatory supervision, send representatives to specific training courses, and publicly acknowledge the offence. Generally, however, where such creative penalties directed at preventive steps have been imposed in addition to fines, the fines have been significantly lower (frequently just a fraction of the expenditures directed at prevention), in apparent recognition of the “creative” sentence related expenditures and efforts. For more information on creative sentences please see our article titled “Harsh Probation Terms + Fines = Creativity: The New Math in OHS Sentencing?”.
Tips for Organizations that Utilize Volunteers
Typically, 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 the potential for a prosecution and a fine or other penalty if there is a bad outcome. When services are provided for free, the short-term gains may not outweigh the long-term risks if organizations do not properly manage volunteers (and volunteer work) on the front-end. The costs associated with regulatory action can far, far out way any savings or other value generated from the provision of “free” services.
Where possible, to mitigate risk, volunteer position descriptions and duties should be clearly set out and used to conduct a hazard assessment before the volunteer activity in question gets underway. Both should be shared with the worker before work begins as training is fundamentally important. Volunteers, like all other workers, should be trained to safely carry out their work. This includes understanding, not just knowing, the hazards associated with the work and the controls in place to address them. Personal protective equipment (PPE) requirements must be clearly communicated as necessary, with the requisite PPE either supplied or screening measures implemented to ensure volunteers are wearing and using PPE as a mandatory pre-condition to work.
Volunteers need to be monitored and supervised for successful (including safe) outcomes to be achieved, especially where the services they are providing are physically or psychologically dangerous or otherwise risky in terms of generating bad outcomes from an operational perspective. Ultimately, if the work to be completed may endanger a worker (regardless of whether they are paid), the employer must ensure that the work is completed by a worker who is competent to do the work, or by a worker who is working under the direct supervision of a worker who themselves is competent to do the work. In Alberta, what it means to be “competent” is defined by the Alberta Occupational Health and Safety Act as someone who is “adequately qualified, suitably trained and with sufficient experience to safely perform work without supervision or with only a minimal degree of supervision”.
The organization must enforce reasonable rules too. If a volunteer will not or cannot safely provide services to an organization in the role that they wish to do so competently, you must consider asking them to take on a new role or refer them to another organization they are more suited to serve. Be especially vigilant where there are young workers providing volunteer services. Again, their typically lesser life and work experience (relative to more experienced workers) — and the risk that represents — warrants it. In some jurisdictions (including British Columbia and Alberta), any worker that is under the age of 25 is considered a “young worker” with heightened obligations on the part of those responsible for supervising them.
Keep good records of the services performed and who they were performed by, including training records, applications (including references), incident reports and any performance assessments or benefits provided. If there is an incident, complaint or other follow-up required, these documents can form the basis of a due diligence defence. This is especially important where pre-screening is required, such as criminal record checks for volunteers working with vulnerable persons. Employers should interview and pre-screen before a volunteer starts. Their education, training, experience and suitability are all relevant factors to consider when determining if they will be a good addition to your team.
Ultimately, the work that volunteers do is indeed laudable and contributes greatly to our communities in Canada, and elsewhere, in many ways. The key take away is to ensure that risks are effectively managed with hazards being identified through education, training, competency assessments and other related means of creating conditions for great outcomes that are also achieved in a safe manner. Volunteering is woven into the fabric of Canadian society and benefits not only the recipient organization and those it serves – but also the volunteers engaged in it. That legacy is best positioned to grow forward when risk is effectively managed for all involved.
Any member of our national OHS and Workers’ Compensation practice group may be consulted on this or any other OHS matters.
The authors gratefully acknowledge the assistance of Allison Wight, an Articling Student in the firm’s Calgary office.