The Freedom to Care Act came into force in Alberta in September 2021. The Act makes it easier for nonprofit organizations to identify existing exemptions to regulations and apply for one-time exemptions. The Act also provides individual volunteers with liability protections.
The "Volunteer Protection" liability exemptions for volunteers are important for nonprofits to be aware of.
As the name suggests, these protections are not for the benefit of charities and nonprofits or their employees, only for volunteers. A “volunteer” is broadly defined as an individual who performs services for a nonprofit organization and does not receive any compensation in respect of the services, other than reasonable reimbursement or allowance for expenses actually incurred while performing the services. The Act further states that the definition of volunteer may include a director, officer, or trustee of the organization.
If a volunteer is acting within the scope of their responsibilities (not defined in the Act), then the volunteer cannot be held liable for their acts or omissions.
Even if the volunteer is licensed or certified to perform those responsibilities (for example a lawyer or accountant), then the volunteer cannot be held liable. If the volunteer has professional liability insurance, and the volunteer performs those services negligently, as a volunteer, they provide professional services pro bono and so cannot be held liable through operation of the Act. Of course, if the volunteer cannot be liable then their professional insurance will not cover any damages.
There are a few exemptions such as if the act or omission was willful, reckless, or criminal, if the damage was caused by a vehicle for which the owner is required by law to maintain insurance, or if the volunteer was impaired by drugs or alcohol at the time.
It is important to note, however, that the charity or nonprofit may still be liable - vicariously or directly - for the conduct of the volunteer. But the Act clearly states that “the non‑profit organization has no right of recovery against the volunteer.”
What this means for nonprofit organizations is that because of the increased risk to nonprofits and corresponding inability to seek indemnification from negligent volunteers, it is vitally important to define the roles and responsibilities of volunteers. With clearly defined roles and responsibilities, there should be no question if the volunteer is acting within the scope of their responsibilities and therefore volunteer's conduct ought to be protected.
A good discussion with a knowledgeable insurance broker or agent that provides general insurance coverage for the organization may be overdue. Also consider reviewing your organization’s D&O insurance given the new protections the law affords volunteers.