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In many volunteer-driven organizations, volunteer coordinators or boards may hold the view that the organization is not liable for negligent or intentionally injurious actions of its volunteers. This can sometimes be the benefit of using volunteers. They are not employees and, therefore, the same rights and obligations that arise in the employment context do not always arise in the volunteer context. However, volunteer organizations should exercise caution. In some cases, even though a volunteer is not properly an employee of the organization, the organization can still be held liable if a volunteer does something negligent or intentionally hurts another person. This situation is referred to as vicarious liability.
Vicarious liability is liability imposed on one party because of the misconduct of another party. The most common relationship in which vicarious liability arises is the employer/employee relationship. Vicarious liability can also arise as a result of legislation. There are several rationales for the imposition of vicarious liability. One of the rationales is that the person who creates the risk should be the one to pay for any injuries resulting from that risk. The other rationale is that employers have “deeper pockets” to pay for any damages arising out of the liability of the employee.
To explain the basic parameters of vicarious liability, we will consider the employer/employee relationship. For vicarious liability to arise, an employee must have committed a tort (negligence or an intentional act that causes injury). That tort must have been committed during the course of that employee’s employment. The logic being that employers should not be held liable for the bad behaviour of their employees outside working hours. Generally, vicarious liability will be found where an employer has authorized an employee to do something and the employee does that task negligently or carelessly.
The easiest way to avoid this type of outcome is for employers to ensure that when they authorize an employee to complete a certain task, they also train the employee to complete that task properly. This is why having employment policies, procedures and training processes in place is so important.
Employers may also be held liable for the deliberate or malicious actions of their employees if the employer has enhanced the risk of that action occurring. The most common case study of this type of situation is where employers are found vicariously liable for physical or sexual abuse committed by employees on individuals in their care. The most concrete way to avoid this type of situation is for employers to ensure they are not creating an environment that facilitates an employee doing something deliberate or malicious. This can be done through screening processes, training and reasonable supervision, for example. These types of precautions are particularly important in organizations that provide services to vulnerable populations.
The courts have decided that, in the volunteer context, organizations can be held vicariously liable for the actions of their volunteers.
The volunteer must be acting within the course of their duties to the organization for the organization to be found vicariously liable. Further, there must be a substantial connection between the creation of the risk by the organization and the tort committed by the volunteer.
The two examples below illustrate situations in which volunteer organizations have been held vicariously liable.
In one case, an organization, Farmers for Peace, was liable for the negligence of a volunteer, Barry King. Mr. King acted as a director and Vice-President for Farmers for Peace. Mr. King was assisting Farmers for Peace prepare a shipment of goods. The goods were being stored near his property. The plan was to place the goods in a truck and ship them to their final destination. Two trucks were purchased for this purpose. Mr. King borrowed a front-end loader to place the goods into the trucks. While driving the front-end loader to his property, Mr. King was involved in a motor vehicle accident. The accident caused injury to another person. During the accident, Mr. King was acting within the scope of his authority as a volunteer for Farmers for Peace. The court held an organization can be liable for the actions of its volunteers. Therefore, the court found Farmers for Peace liable for the injuries caused by Mr. King to the other person.
In another case, Boy Scouts of Canada was liable for the actions of its volunteer, Khris Chung. A boy was sexually assaulted while attending a Boy Scout camp. Ms. Chung saw the assault and failed to take any action in response. Ms. Chung’s failure to act was negligent. The court held volunteers are the same as employees for the purpose of vicarious liability. The main issue was whether Ms. Chung was acting within her role as Camp Chief. Ms. Chung’s duties were to ensure the safety of the children at the camp. Boy Scouts Canada had procedures to report sexual abuse, but Ms. Chung did not follow the procedure after witnessing the assault. Boy Scouts of Canada was found to be vicariously liable for the negligence of Ms. Chung.
For volunteers, there may be some temptation to avoid caution when volunteering, because if you do something wrong, you will not be held liable for your actions – your organization will be. This is wrong.
Organizations will not always be held liable for the actions of their volunteers. For example, an organization might not be liable if it has done everything it should to train a volunteer and avoid unnecessary risk. If a volunteer still acts negligently in the performance of their duties, or does something malicious and deliberate, the volunteer will be liable entirely on their own.
Further, if someone is injured, they will likely sue the organization and the volunteer together, jointly and severally. This means that if the organization is found liable, they can pursue a portion of the damages from the volunteer. Organizations may also have indemnification policies in place which state that if they are liable for the actions of a volunteer, the volunteer has to pay for the legal fees and damages incurred by the organization.
Volunteers must continue to exercise diligence and caution in the performance of their volunteer duties, despite the fact there are some situations in which the organization could be held vicariously liable.
Vicarious liability is highly fact-specific and must be assessed on a case-by-case basis. This makes it challenging to provide recommendations on the best actions an organization can take. However, at a minimum, organizations should be aware that they can be vicariously liable for the negligence of their volunteers if the volunteers are acting within the authority given to them. The best practice for organizations is to properly train and supervise volunteers, and to keep records of the organization’s efforts to prevent negligence. With these procedures in place, an organization is less likely to be on the hook for damages caused by one of its volunteers. For volunteers, it is important to remember that your organization will not always shield you. It is important to exercise your duties with caution and care.