Ontario Nature Fact Sheets

Dealing with liability

Do we need to be concerned about liability?

Almost any organization that owns land or deals with members of the public is exposed to liability in some way. This might include liability for:

• injuries or harm to users of your properties, or to participants in your outings, events or other activities
• injuries or harm to your volunteers or employees
• official actions taken or not taken by your organization.

While managing this liability should be a concern, the good news is that a combination of a risk management program and good insurance coverage should protect you from almost all liability problems.

What is a risk management program?

Risk management simply means anticipating potential problems and working to eliminate or reduce the probability that they will actually occur. So you might have a policy that volunteers in remote areas always travel in pairs, or you might think twice before hosting an outing in a very hazardous area.

If you are considering acquiring a property, walk it carefully to look for hazards such as old wells, washed-out trails, unstable slopes or unsafe buildings. One very important liability on properties is hazardous waste, since you can end up legally responsible for cleanup bills. Inspect properties carefully before you accept them; watch for signs of waste dumping, buried storage tanks, or previous industrial use. Talk with neighbours. Contact the nearest Ministry of the Environment office to check for any records of hazardous waste on the property. If in doubt, obtain a professional environmental audit report on the risks before you buy.

Regular inspection to identify and correct hazardous conditions is also important for properties you own. If you can’t remove a hazard, post warning signs. While the Occupier’s Liability Act limits much of an Ontario landowner’s liability for injury or harm to recreational users of their properties, you still must show that you have not been negligent or acted in reckless disregard of others’ safety. Allowing public use certainly increases your exposure to liability, but the number of actual problems in Ontario has been small. Don’t let exaggerated fears get in the way of a sensible approach to public access.

Another way of managing your liability is to have participants in your organization’s outing sign a waiver form. Here’s an example. While these forms do not completely remove your liability, they do make participants more aware of any risks involved.

ABC Field Naturalists

Waiver and Assumption of Risk

Please read this Waiver carefully.

I, ___________, in consideration of the ABC Field Naturalists allowing me to accompany them on this trip, hereby agree to release, save harmless and indemnify the Owen Sound Field Naturalists, its officers, directors, its agents, and members from and against all claims, actions, costs and expenses in respect to death, injury, loss or damages to me or my property arising as a result of my participation in this trip, notwithstanding that the same may have been contributed to or occasioned by the negligence of the ABC Field Naturalists, its officers, directors, agents and members.

I affirm that I am in good health, capable of participating in this trip, and I accept as my personal risk the consequences of such participation.

I agree to follow the safety instructions and other rules of the ABC Field Naturalists. I will not participate with this trip if I am under the influence of drugs or alcohol.

In the event of an accident or medical problem suffered by me, I consent to the ABC Field Naturalists seeking out the appropriate medical care required.

I declare this Waive and Assumption of risk is binding on me, my heirs, executors, administrators, and assigns.

I have read this Waiver and Assumption of Risk and I fully understand all aspects of it.

Date:_________________________

Witness:_________________________

Signature:_________________________

Do we need liability insurance?

The short answer is YES. No matter how careful you are, accidents may happen. Facing the costs of defending your organization and paying any settlements without insurance could bankrupt your group and put its members at risk. Talk to a good insurance agent about your needs, so that he/she can tailor a package to your level of activity at a reasonable cost.

The starting point is a standard General Commercial Liability policy, which will cover your organization, its officers, directors, employees, members and volunteers for the majority of liability claims. You might need to add specific components, such as coverage (from theft and fire, for example) for properties you own or manage or Non-Owned Automobile Liability coverage for vehicles used by volunteers on the business of your group. This General Commercial Liability policy will also cover claims by people who are not members of your organization, but who have taken part in your activities or visited your properties.

What about directors’ and officers’ insurance?

An increasing number of organizations are adding a Directors’ and Officers’ Liability policy to their insurance coverage. Essentially, this insurance protects individual members of a board of directors from personal exposure to liability for decisions or actions taken on behalf of the organization. To be effective, this insurance must be matched by a resolution within the organization’s by-laws agreeing to pay the costs of defending its directors and indemnifying them from losses resulting from their activities.

For a small organization, the added expense of director’s and officers’ insurance may not be worthwhile, and new organizations may have difficulties obtaining coverage until they have a track record of several years. But for other groups, this coverage can be vital if the board is sued by an employee or contractor for wrongful dismissal or for discrimination, or if someone sues the group for libel.

Another sound reason to obtain this insurance is that many good people will not serve as directors unless it is in place, to be sure that their personal assets are not at risk. It is worth noting that the courts in Canada have ruled that liability for board decisions rests will all the directors, whether or not a certain director voted in favour of a particular action, was even at the meeting in question, or was completely inactive.

A group insurance policy for Directors’ and Officers’ Liability coverage is also available through the environment and lake association package described above.

The other factsheets in this series are Individual Gifts to Local Conservation Organizations and Incorporation and Charitable Status.

Ontario Nature gratefully acknowledges the financial assistance of the Tip of the Mitt Watershed Council (Great Lakes Aquatic Habitat Fund) in the production of this factsheet series.

This factsheet or information from it may be reproduced provided credit is given to Ontario Nature.