By Jon Heshka, Associate Professor specializing in sports law and Former Associate Dean of Law at Thompson Rivers University (British Columbia, Canada)
After a grueling four year march down the field and through the Canadian court system, the Supreme Court of Canada last month stopped at the goal line the concussion lawsuit filed by Arland Bruce.
Bruce had filed his suit in 2014 against the Canadian Football league, its commissioner, all its teams, an internationally renowned doctor who specializes in sports concussions, the medical centre which employed the doctor, the Canadian Football league Alumni Association and its executive director.
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 2012. He also alleged that while he displayed the ongoing effects of concussion to the coaching and medical staff of the Montreal Allouettes, he was permitted to play for the team in the 2013 season.
The defendants contended 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.
Insofar as Bruce’s claim that he was unaware of and kept in the dark about the risks of concussions in football, it is interesting to note that at the CFL Players Association AGM in 2011, players learned — for the first time — according to Winnipeg Blue Bombers defensive tackle Doug Brown who was present and wrote about it in the Winnipeg Free Press the following:
“According to information from a UNC study we were shown, “Repeatedly concussed NFL players had five times the rate of mild cognitive impairment (pre-Alzheimers) than the average population.” The same study also showed that, “…retired NFL football players suffer from Alzheimer’s disease at a 37 per cent higher rate than average.” Going into this conference we were all somewhat familiar with the long term consequences of playing football, but not to the depth that was introduced at our meetings. Next we were shown that Time Magazine had produced a story about football called The Most Dangerous Game, and the author, Sean Gregory, concluded that, “Men between the ages of 30 and 49 have a one in a thousand chance of being diagnosed with dementia, Alzheimers, or another memory related disease. An NFL retiree has a one in fifty-three chance of receiving the same diagnosis.” This was around the moment in Las Vegas where a collective ‘thunk’ was heard as all of our jaws hit the floor. These are not CFL statistics, but you would have to be pretty naive to think that these facts do not apply to our game as well.”
The Supreme Court of British Columbia in 2016 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.”
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.
A year later in May 2017 the British Columbia Court of Appeal upheld the lower court’s decision and dismissed Bruce’s appeal. Writing on behalf of the three member court, Justice Mary Newbury wrote that “in all the circumstances, I am unable to say that the chambers judge erred in law in characterizing the essence of the action as it now stands as one about health and safety in the workplace, or more particularly, a workplace injury. That matter is dealt with by the collective agreement (including the standard player contract) and may be said to ‘arise under’ it.”
Bruce applied for a leave to appeal to the Supreme Court of Canada in August 2017. The court last month said that it won’t hear the case. As usual in decision on leaves to appeal, the Supreme Court gave no reasons for refusing to hear the case.
In deciding not to hear the case, the Supreme Court of Canada has effectively dealt a knockout blow to Bruce’s quest to have the court system hear his concussion case. Bruce will now take his case to arbitration. The Supreme Court of Canada’s decision represents a setback to the fledgling $200 million concussion class action lawsuit filed in 2015 in Ontario. While the Bruce judgment has no precedential effect on the courts of Ontario, it is not helpful to those ex-players who competed in the Canadian Football League and who want to have their day in court.
