Not all offers of free voluntary work need be accepted according to the Ontario Superior Court of Justice’s recent ruling in Foschia v. Conseil des Écoles Catholiques de Langue Française du Centre-Est.

The facts in Foschia were straightforward. The plaintiff, Mr. Foschia, was a father of two children who attended the La Vérendrye School. He worked as a volunteer at the school and was involved in various school activities. Part of Mr. Foschia’s volunteer duties included the supervision of children in a classroom during midday meals.

In April, 2005, the principal of the school received complaints from two parents of second-grade daughters. They complained that the Plaintiff was giving their daughters “special attention” and they were concerned about their daughters’ safety and that of the other students. The parents asked that Mr. Foschia have less access to their daughters. In light of these complaints, the school’s principal made the decision to limit the plaintiff’s volunteer activities and placed greater restrictions on his “comings and goings in the school.”

Unhappy with the forced reduction of his duties - and the principal generally - the plaintiff complained to various school board officials, including the superintendent and deputy superintendent. He was ultimately barred from accessing the school premises in February, 2006.

Following his expulsion, the plaintiff brought a civil action against 20 defendants including the school board seeking, amongst other things, to continue his volunteer duties with the school without restriction.

The defendants jointly brought a motion to have the plaintiff’s action dismissed.

In dismissing the plaintiff’s actions, the Court noted that the Education Act cloaked the principal with the duty to “refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils…”. The Court found that in prohibiting the plaintiff from the school’s premises, the principal acted in the course of her duties and in accordance with the legislation.

As the court noted: “There is nothing in the law to require a school principal to accept all offers of voluntary help or to continue to accept them. His or her decision must be accepted.”

Organizations that regularly recruit and rely on the assistance of volunteers should read the court’s decision with some caution. The protections against discrimination and harassment in “employment” set out in the Code have been interpreted broadly to include any “employment-like” relationship. As a result, it is likely that the Human Rights Code will apply to a volunteer in the event that his or her duties are terminated in contravention of the Code. Further, human rights legislation is quasi-constitutional. That means that provincial legislation, including the Education Act, must ultimately be read in compliance with the Code subject to any express statutory exemptions.

In Foschia, the plaintiff did not allege that in the process of terminating his volunteer duties, his rights pursuant to the Ontario Human Rights Code were violated nor were there any facts which suggested such a claim could be substantiated