Case In Point
Appeal Court Affirms Exclusive Jurisdiction Model Applies in CFL Concussion Case
Date: May 16, 2017
In a case that continues to attract media attention, the British Columbia Court of Appeal (Court) upheld a lower court decision that concluded it was without jurisdiction to hear claims brought against the Canadian Football League (CFL), its teams and various individuals relating to concussions alleged to have occurred to a former professional football player, as the matters in dispute arose under a binding collective bargaining agreement.
As we previously reported, Arland Bruce commenced a civil court action and sought substantial damages against the CFL teams and other parties for an alleged failure to provide safe working conditions and protect his health and safety during his years as a professional football player. The claim centred specifically around Mr. Bruce’s allegations that he was knocked unconscious and suffered a concussion during a CFL game. Finding that the dispute arose under the collective agreement and was therefore within the exclusive jurisdiction of a labour arbitrator, the lower court struck Mr. Bruce’s claim in its entirety. The lower court concluded, among other things, that:
- The substance of Mr. Bruce’s claim related to health and safety matters, and more specifically, fell within the scope of the provisions of the collective agreement addressing player safety and player equipment.
- The language of the arbitration provisions required disputes between a player and his team and/or the CFL to be finally and conclusively settled through the grievance and arbitration process. While this employment relationship had “unusual” features – such as a requirement that players negotiate certain terms of their employment (including regular season compensation) with teams directly in Standard Player Contracts (SPCs) – this did not give the court jurisdiction to resolve claims where the “essential character” of a dispute arose under the collective agreement.
- Mr. Bruce could have obtained a meaningful and effective remedy for any injuries that he may have suffered under the collective agreement, and could have filed a grievance at the time he commenced his civil claims in the courts.
At the outset of the appeal, Mr. Bruce discontinued the proceedings against the other parties. Mr. Bruce did not appeal the lower court’s finding that his claims against the other defendants were properly before a labour arbitrator. Accordingly, the Court was only required to decide the appeal with respect to the CFL teams and then CFL Commissioner, Mark Cohon.
In dismissing Mr. Bruce’s appeal as against the remaining defendants, the Court concluded as follows:
- The court below properly considered the claim as pleaded. It considered the “essential character” of the dispute between the parties as one relating to health and safety – and not, as the plaintiff contended, a dispute relating to “compensation” (para. 81). Since the collective agreement addressed the subject of player health and safety, the dispute, “viewed in its essential character,” properly arose from the collective agreement (see paras. 3, 81, 83).
- The court below did not err in finding that the essential character of the dispute was about health and safety in the workplace and more particularly, a workplace injury (para. 87).
- The court below did not err with respect to the “ambit” of the collective agreement. Tort claims, including negligence claims, can proceed by labour arbitration provided the subject matter of the dispute is covered by the collective agreement. The “key question” in this context was whether requiring players to negotiate their regular compensation directly with their employers within the confines of SPCs was an exception to the exclusive representation principle that ousted the jurisdiction of a labour arbitrator. Here, the exceptions made were limited, and the collective agreement governed in the event of any conflict with the terms of a SPC. The players’ obligation to negotiate their own terms of regular season compensation could be seen as a “delegated” power sanctioned by the collective agreement (paras. 89-90).
- The court below did not err in finding that Mr. Bruce could have obtained an effective remedy had he sought compensation by way of arbitration under the collective agreement (para. 91). In fact, the CFL and Commissioner Cohon undertook not to object to any application Mr. Bruce might make for an extension of time limits under the collective agreement for bringing his complaint.
While employment relationships in the professional sports world may have “unusual” features, this decision affirms and applies well-established first principles of labour law, underscoring that where the essential character of a dispute arises under a collective agreement, the exclusive jurisdiction model will govern.
The CFL was represented by Hicks Morley’s Stephen J. Shamie and Sean M. Sells, and Geoffrey J. Litherland.
Bruce v. Cohon, 2017 BCCA 186 (CanLII)
