By Jon Heshka, Associate Dean of Law at Thompson Rivers University (British Columbia, Canada)
The Supreme Court of British Columbia last month dismissed a concussion lawsuit filed by a former professional football player against the Canadian Football League (CFL), its commissioner, all its teams and — as a sidebar — an internationally renowned doctor who specializes in sports concussions, and a medical centre that employs the doctor.
Arland Bruce played in the CFL from 2001 to 2014. Bruce alleged that he was knocked unconscious and suffered a concussion while playing in a game for the BC Lions in September 2012. He further alleged that he sustained multiple sub-concussive and concussive hits while playing in a game for the Lions in November of the same year. He also alleged that while he displayed the ongoing effects of a concussion to the coaching and medical staff of the Montreal Alouettes, he was permitted to play for the team in the 2013 season.
The defendants argued that the allegations arose solely from his employment with the BC Lions and the Montreal Alouettes and are thus subject to the grievance and arbitration process set out in the 2014 Collective Agreement and fall within the exclusive jurisdiction respectively of the BC Labour Relations Code and the Quebec Labour Code.
Bruce claimed that the defendants caused or contributed him to suffer brain injuries due to multiple sub-concussive and concussive blows. The lawsuit alleged negligence for breach of what Bruce asserted to be their common law duty of care to protect the safety of CFL football players, negligent misrepresentation of player safety issues respecting concussions made to induce athletes to play football in the CFL, and for negligence with respect to their alleged failure to use available technology to reduce the risks to players from traumatic head injuries. Bruce challenged the defendants’ assertion that the 2014 Collective Agreement conferred exclusive jurisdiction to CFL arbitrators to resolve issues such as his common law right to bring an action in court.
The court declined to look at the merits of the case and instead decided only whether the dispute should be resolved by the Court or proceed through arbitration. The court undertook an extensive analysis of exclusive representation under Quebec and British Columbia labour law. In his ruling, Chief Justice Hinkson of the Supreme Court of British Columbia acknowledged that the Supreme Court of Canada settled the law in Weber v. Ontario Hydro with regard to the jurisdiction of Courts and labour arbitrators.
In Weber, the Supreme Court of Canada held that an exclusive jurisdiction model to labour disputes should be adopted and that, “Under this approach, if the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and the courts have no power to entertain an action in respect of that dispute. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.”
Ruling Is a Setback for the Plaintiffs’ $200 Million Concussion Lawsuit Against the CFL
Chief Justice Hinkson further accepted the view of Mr. Justice Oland of the Nova Scotia Court of Appeal in Gillian v. Mount Saint Vincent’s University when he held that the courts possess limited residual jurisdiction in certain situations involving labour relations and that where the appellant could have sought effective remedies under the Collective Agreement, there is no need for the exercise of that residual jurisdiction.
In noting that there are no monetary limits to the compensation that a player can seek pursuant to the 2014 Collective Agreement, the Court found that the disputes raised by Bruce arose from the 2014 Collective Agreement and can only be resolved through the grievance and arbitration process.
This is obviously not the result Bruce wanted and also represents a setback to the fledgling $200 million concussion class action lawsuit filed last year in Ontario. While the Bruce judgment in British Columbia has no precedential effect on the courts of Ontario, it is at the very least a body blow and potentially a knockout punch to the ex-players who competed in the Canadian Football League and who want to have their day in court.
