Wayne Hannan, an 86-year-old man who had been volunteering with the Scouts since 1958, was told in 2023 that his membership as a “Scouter” would not be renewed for the 2023-24 scouting year, a decision made due to “safety concerns and resistance to program adaptation.” The letter was said to be a followup to previous conversations that started in December 2022, but Hannan said no such conversation had taken place and the situation was shocking and “deeply unfair” because he did not know what the safety concerns were and in what way he was resistant to program adaptation.
And now Justice Calum MacLeod of the Ontario Superior Court has ruled the refusal to renew Hannon’s Scouter application was wrongful termination of his volunteer status and, therefore, his membership in Scouts Canada.
“There is little doubt that, viewed objectively, [Hannon] has been treated shabbily and denied any semblance of due process,” he wrote.
Scouts Canada argued that none of its policies or procedures for volunteers create a legally binding relationship or a long-term contract between the organization and the member. Although all volunteers agree to be bound by a code of conduct and to follow the Scouts’ policies, the organization said this is not a legal obligation and does not give a Scouter a right of action simply because the organization declines to renew him as a volunteer.
But Justice MacLeod found the relationship between Scouts Canada and its volunteers to be contractual in nature due to the well-publicized and extensive procedures and policies that have been put in place to govern that relationship.
“If the basis for not renewing membership is alleged to be unacceptable conduct on the part of the member, the member has the right to assume that the organization will follow its stated policies,” he wrote.
Hannan was given no opportunity to respond to written warnings, to adapt his behaviour, to benefit from coaching or to respond to specific allegations, Justice MacLeod ruled.
“He was not given access to the internal routes of reviewing a disciplinary decision or to the internal routes of appeal which the policies promise to provide,” he wrote. “Where the [Scout] Group Commissioner purports not to renew a volunteer for breaches of the Code of Conduct or for unsatisfactory performance, the decision appears disciplinary.”
While he noted courts are “generally reluctant to encourage resort to the courts by disgruntled members of voluntary associations,” Justice MacLeod wrote in Hannan’s case a legal remedy was appropriate. He granted a limited mandatory order that if Hannan wishes to volunteer for the current season, his application be reviewed appropriately and expeditiously and unless there are valid demonstrable reasons for non-renewal, his renewal be granted (Hannan v. Scouts Canada, 2024 ONSC 5361).
Sean Grassie of Conway Litigation, who represented Hannan, said he was pleased that the court has recognized his client’s “incredible contributions to the Scouting movement and that Scouts Canada’s conduct in purporting to terminate him was unwarranted and unlawful.”
“Based on Scouts Canada’s by-laws, written rules and policies, Mr. Hannan had a contractual right to expect he would not be disciplined unless he was notified of any allegations against him in advance and given a fair opportunity to respond,” he said. “As the Court found, Scouts Canada failed to abide by its own rules in this regard, which was procedurally unfair to Mr. Hannan. Moreover, the Court found that the allegations against Mr. Hannan were unfounded. As he did nothing wrong, there was no basis for Scouts Canada to discipline him by refusing to renew his role as Troop Scouter.”
Michael Lynk, Western University Faculty of Law
“One question that the court dealt with in this case was jurisdiction — do I, as a judge, have jurisdiction over a case arising out of a voluntary organization like this? And his answer is yes,” he said. “And a second question is to identify is ‘Do I have jurisdiction with respect to someone who appears to be wrongfully terminated from a volunteer position?’ And his answer is yes, even if we can’t point to a huge number of prior decisions.”
Lynk said that “we rarely ever think of the law” in terms of Canada’s voluntary sector, especially when it comes to older people.
“But this says if you’re going to remove a volunteer either knock them off the board of directors of an organization, or if or otherwise remove them from a volunteer status, that could be actionable under the law,” he said. “And what you’ve got to do is ensure that you’re applying reasonable rules with respect to conduct in a reasonable fashion. Are you giving notice laying out the allegations, and allowing that person to be able to answer those allegations? So, there are lessons here that other organizations would want to follow.”
Grassie agreed that a finding of wrongful dismissal in a volunteer context “seems pretty rare.”
“Where a sophisticated not-for-profit corporation publishes discipline-related rules applicable to volunteers, the volunteers are entitled to expect that the organization will apply those rules fairly and consistently,” he said. “In these circumstances, the decision indicates that the courts will step in where necessary to ensure the organization follows its own policies and observes basic fairness.”
Counsel for Scouts Canada did not respond to a request for comment.