By Ryan M. Prendergast

Wayne Hannan, an 86-year-old volunteer Scouter, was granted declaratory relief by the Ontario Superior Court of Justice after his annual application to renew his volunteer status was denied in November 2023 and he was advised that he could no longer serve as a Scouter for Scouts Canada’s 115^th Sea Scout Troop (the “115^th”). The court’s decision in Hannan v Scouts Canada, released September 27, 2024, considered Hannan’s claim that Scouts Canada, a not-for-profit special act corporation, breached its internal policies, procedures and rules, including an Appointment of Scouters Procedure, Volunteer Screening Procedure and Disciplinary Management Procedures for volunteers when it failed to provide adequate reasons or due process for the denial of his renewal.

Hannan had been a Scouter with the 115^th since 2001 and had been a volunteer with Scouts Canada since 1958, when he received a letter stating that his annual volunteer application had been denied for “safety concerns and resistance to program adaptation”. However, both Hannan and the Skipper of the 115^th had been unaware of such concerns. The letter further stated that the denial of his renewal would not affect his Scouts Canada membership, and encouraged him to seek other volunteer opportunities within the organization.

Hannan argued that the denial amounted to discipline, and that any discipline ought to have been carried out in accordance with Scouts Canada's Discipline and Performance Management Procedure, which includes regular performance feedback, permits the Group Commissioner to offer coaching or provide a written reprimand, and requires that “a record of all efforts undertaken to provide guidance to a Scouter” be maintained. Scouts Canada, on the other hand, argued that “discipline and suspension policies do not apply to this situation because the Group Commissioner has complete discretion in renewing volunteer Scouters” and that its termination and discipline policies do not apply to annual renewals. Scouts Canada also argued that the court had no jurisdiction over what it considered to be an internal matter.

The court therefore considered whether it had jurisdiction in these circumstances, whether non-renewal of a volunteer position constituted "discipline" under Scouts Canada's policies, whether Hannan breached Scouts Canada’s Code of Conduct such that the non-renewal was justified, and what remedy would be appropriate in the case that Hannan was “wrongfully dismissed” as a volunteer. In considering its jurisdiction, the court found that the relationship of members to Scouts Canada is contractual in nature, given the “structure of the organization, the commitment by all members at all levels to live by the Code of Conduct, Scout Law and the well publicized policies and procedures for volunteers”. It referenced the Supreme Court of Canada’s decisions in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga, among other cases, in determining that it had jurisdiction to decide on the matter, stating that “[t]he court is not being asked to measure incorporeal and aspirational values such as kindness or benevolence but concrete issues such as breach of policies, and procedural fairness.  These are questions within the core competence of a Court and precisely the kind of disputes normally before the Court in employment cases or other breach of contract actions.”

In considering the alleged misconduct, the court found that the allegations of misconduct against Hannan were unsupported by any reliable evidence, and concluded that Hannan had not breached Scouts Canada’s Code of Conduct. Following this, with regard to the question of discipline, the court stated that:

[…] there may be structural and other reasons that could result in particular volunteer roles being altered or eliminated.  From time to time an organization such as Scouts Canada may need to reorganize its structure, eliminate or alter volunteer roles or shut down open or evolve Troops or other groups.  No doubt the organization needs flexibility to do so, and volunteers have no right to demand the continuation of a particular role or position in such circumstances.  That is not what happened here.

It then stated that where a volunteer is not renewed for purported breach of the Code of Conduct or for unsatisfactory performance, “the decision appears disciplinary”. On this basis, the court concluded that Scouts Canada should have followed its disciplinary policies when opting not to renew Hannan’s volunteer application.

The court therefore granted declaratory relief, affirming that Scouts Canada’s policies applied to Hannan and that his non-renewal was wrongful. While the court acknowledged that Hannan had suffered a breach of contract, it found that no pecuniary loss had been proven, and issued a mandatory order requiring Scouts Canada to process any future applications from Hannan in good faith and in a timely manner. Additionally, Hannan was awarded costs.

This case is an important reminder of the contractual nature between voluntary organizations and their volunteers, as well as the importance of ensuring that decisions involving the status of volunteers, particularly where dismissal or non-renewal is involved, are consistent with the organization’s policies.

​Read the October 2024 Charity & NFP Law Update