What About Volunteers?
In my view, the key is to recognize that there are some special risks that come with volunteers. This doesn’t mean that engaging volunteers is an absolute “no-no”. But it means that you need to carefully weigh the risks, and the possible measures to reduce the risks, when considering volunteers.
What are the risks?
- By definition, a volunteer is unpaid. Therefore, it is normally not possible to obtain WSIB coverage for a volunteer. Therefore: if the volunteer is hurt while performing a task on the common elements, the volunteer will likely not have any WSIB coverage. When someone has WSIB coverage, this often reduces or eliminates the risk of a claim by that person (such as a claim against the condominium corporation alleging that an injury was caused by an unsafe condition on the common elements). This risk is normally higher when dealing with a volunteer (again, because volunteers typically don’t have WSIB coverage).
- Volunteers normally don’t have (and generally are not able to obtain) liability insurance. Therefore, if a volunteer causes harm or damage to a person or property (while performing the volunteer’s tasks for the condominium corporation), the volunteer normally does not have liability insurance to cover resulting claims. At the same time, the condominium corporation could be vicariously liable for any such damage or harm caused by a volunteer. This can in turn raise questions about whether or not the corporation’s liability insurance will cover these risks (in relation to damage or harm caused by the corporation’s volunteer).
- A further risk is as follows: If the volunteer happens to cause harm to the condominium property, the volunteer would again normally not have liability insurance to cover this risk. The corporation’s property insurance might cover the damage, but only if the damage falls within an insured peril (or in other words is not excluded) under the corporation’s property insurance policy.
In summary: when someone performs a task for a condominium corporation, there is a risk that the person performing the task might be hurt or might cause harm or damage. If the person is a volunteer, the ultimate risk is normally somewhat higher simply because the volunteer normally won’t have WSIB coverage or liability insurance (to respond to the risks).
In my view, this doesn’t necessarily mean that condominium corporations should never engage volunteers. In each case, the key is to consider the risks before coming to a decision. Factors to consider are:
- How risky are the tasks to be performed? How big is the risk of harm to property or to persons (including a volunteer)?
- In many cases, it might make sense to appoint the volunteer as an officer of the condominium corporation (for the purpose of the particular task(s) to be performed by the volunteer). [Normally this can be done by a carefully worded Board resolution.] This may increase the likelihood of coverage under the corporation’s various insurance policies, in relation to the activities of the volunteer. In most cases, the corporation’s by-laws will also provide for indemnification of Directors and Officers, which is another reason that it may make sense to appoint the volunteer as an officer. Another thing that might be considered is the formation of volunteer committees. For example, your Board might wish to establish a committee for “low risk” tasks such as gardening. The resolution appointing the committee could confirm that the members of the committee are officers of the Corporation.
- In many cases, it may also make sense to advise the corporation’s insurers of the tasks to be performed by the volunteer(s) (as well as any related Board resolution as noted above). That way, the insurer will at least have notice of the volunteer activities (which should reduce the possibility of the insurer denying coverage for “undisclosed risks”).
- Another consideration is: would it make sense for the condominium corporation to purchase any sort of disability insurance for the volunteer(s)?
- Finally: an agreement between the condominium corporation and the volunteer (with clear statements of the rights, obligations and risks of the volunteer and the condominium corporation) can also be a good idea.
The bottom line is that there are risks with volunteers that are generally “lessened” when dealing with independent contractors or paid employees who have specialized skills and appropriate insurance coverage. On the other hand, volunteers make a huge contribution in many condominium communities. The key is to weigh the risks, and perhaps consider some of the above factors (to manage those risks), if you decide to “engage” volunteers. It may also be wise to consider seeking legal advice any time you are considering volunteers.
As always, stay tuned to Condo Law News to keep up to date on the latest developments in condominium law.