No Good Deed Goes Unpunished
Photo by Krista Turcass, Tears & Gears 2011
It seems like everyone in the Elk Valley volunteers their time in one way or another. From search and rescue, to child care, to sporting events, and everything in between, volunteers make our community a great place to live. But, as they say, “no good deed goes unpunished”.
Hopefully, by setting out some basic legal concepts, this article may help you identify and reduce the potential for legal liability in your not-for-profit activities and allow you to bask in the glory of a job well done. WARNING: this article is not legal advice - each situation is different and your volunteer organization should seek advice from a lawyer prior to your event or program taking place.
The law requires that we all must take reasonable care not to cause injury or loss to others – this is the overriding “duty of care”. If reasonable care is not taken and someone suffers loss or injury as a result, you may be found liable, regardless of whether or not you were volunteering your time. The duty of care will be different for different situations, however, if you breach that duty, you may be found to be “negligent”. Whether you are found to be liable or not will depend on a number of factors, but considerations include: whether the conduct fell below the standard of a reasonable person, whether there is a connection between the negligent act and the injury or damage, and whether the injury or damage was foreseeable.
The best and first line of defense is to take as much care as you reasonably can to make sure your event is as safe as possible for the participants, organizers and volunteers. Engage in pro-active risk management: identify the risks, analyze the probability of a problem arising, and then minimize those risks as much as is reasonably possible.
In Fernie, many events sponsored by volunteer organizations involve outdoor sporting activities which, because they are high risk, elevate the legal risk for organizers. Waivers are one way to reduce potential liability. All participants and volunteers should sign a waiver before they are allowed to participate in events with any degree of risk. A lawyer should draft the waiver for your specific event or program (using someone else’s or one you found on the internet is not a good idea). WARNING: waivers are not a bullet proof shield – a Court may set aside a waiver for a myriad of reasons. Waivers are not a substitute for taking reasonable care. NEXT WARNING: a child’s rights cannot be waived by a parent or guardian, nor can a child under the age of 19 waive their legal rights.
You should also get insurance. Everyone involved with a volunteer organization needs to consider how a claim will be paid for, including the cost of paying for a legal defense. Insurance may be expensive, but the cost of defending a claim is usually many times the amount of the insurance premium and deductible, let alone the actual claim. Read exclusions in your policy very carefully. Speak to your insurance agent and ensure your policy will cover whatever activities your organization may be engaged in.
The next defensive move you could take is to incorporate your organization as a not-for-profit society. Many groups organizing events in Fernie are unincorporated (an informal group of individuals who have a good idea and put it into practice). With an informal group, each and every organizer or volunteer may be personally liable for any loss, damage or debt that occurs as a result of the event. For example, if you ordered t-shirts for your event and you didn’t raise enough money to pay for the t-shirts, you’re personally on the hook for the bill.
Generally, the Directors, Officers, members and volunteers of an incorporated society are usually not personally liable (provided that they act in the scope of their authority on behalf of the society). However, Directors and Officers of an incorporated society can be personally liable for any unpaid HST, wages or withholdings, environmental and other government-type matters.
Have fun this summer with the many fantastic events put on by our dedicated volunteers!