Court won’t hear appeal in concussion case
Supreme Court ruling cites agreement requiring arbitration of injury claims
Arland Bruce was a Canadian Football League player until four years ago, in 2014. Now he’s 40 years of age and, by government sanction, a Person with Disability Status.
“That means the province of British Columbia has assessed him as being unable to return to work, and he’s receiving a public disability pension,” lawyer Robyn Wishart said Thursday.
Bruce is also a former CFL player who won’t be able to pursue his claim for damages related to post-concussive symptoms in court.
The Supreme Court of Canada ruled Thursday morning that Bruce would have to take his claim for compensation to arbitration, so Wishart was within hours filling out the paperwork to do just that.
“Now we start talking about the merits of the case,” she said from her Vancouver office.
The Supreme Court announced Bruce would not be allowed to appeal two British Columbia court rulings that he could not take his claim to court because he had been a Canadian Football League Players’ Association member and was bound by terms of a collective agreement calling for arbitration of injury-related claims.
Wishart had argued Bruce’s case should have been considered an exception to legal precedents. That includes a 1995 Supreme Court decision that unionized employees must almost always take injury claims against employers to arbitration, because the CFLPA was not an exclusive bargaining agent since, for example, it did not negotiate individual salaries.
The CFL issued a statement Thursday saying it was “very pleased with the Supreme Court of Canada’s decision. We hope that this decision brings finality to any proceedings in the courts with respect to concussion litigation against the CFL.”
Bruce filed suit in July 2014 against the CFL, former CFL commissioner Mark Cohon, neuroscientist Dr. Charles Tator, the Krembil Neuroscience Centre of Toronto, the Canadian Football League Alumni Association and its executive director, Leo Ezerins.
In court documents, Bruce cited “permanent and disabling ” repetitive head trauma during his career and continuing post-concussive symptoms. He also said the defen- dants “were aware or ought to have been aware that multiple sub concussive and concussive blows to the head can lead to long-term brain injury, including but not limited to memory loss, dementia, depression and (chronic traumatic encephalopathy) and its related symptoms.”
He alleged he was allowed to play again even though it was known he had concussion symptoms after being knocked unconscious by a hit in a B.C. Lions game against the Saskatchewan Roughriders in September 2012. He played between 2001 and 2014 with the Winnipeg Blue Bombers, Toronto Argonauts, Hamilton Tiger-Cats, Lions and Montreal Alouettes.
The British Columbia Supreme Court ruled against Bruce in March 2016. After discontinuing legal action against all but the CFL and Cohon, he also lost in the British Columbia Court of Appeal in May 2017.
Asked if she had any comment to relay from Bruce about the Supreme Court decision, Wishart said she had just talked to Bruce and his uncle and then paused.
“He said he knows that nobody has fought harder for him and his wife than me and this fight isn’t over,” she said. “He’s coming in on Tuesday and we’re going to get him assessed and get his story in front of the arbitrator.”
In contrast to the court battle that took nearly four years to produce Thursday’s Supreme Court decision, arbitration should play out relatively quickly, although there are no stipulated timelines for the joint selection of an arbitrator by the players’ association and the CFL and for scheduling most hearings. A special expedited arbitration process would be reserved for rare, serious matters such as dismissal.
Once a hearing takes place, however, the CFL-CFLPA collective agreement requires an arbitrator to rule within 30 days.
A class-action claim was filed against the CFL, Cohon, Tator and the Krembil Neuroscience Centre in Ontario Superior Court in 2015. That lawsuit, now including more than 200 former CFLers, seeks $200 million in damages for those who participated in practices and games between 1952 and 2014.
It remained on hold during Bruce’s legal process. There was no word Thursday on when or if it would resume, but Wishart, who also represents the plaintiffs in Ontario, seemed intent on pursuing the matter.
She said the class action would feature different issues than Bruce’s case, including that not all of the former players involved had been in the CFLPA.
The Superior Court in Ontario would almost certainly take note of B.C. rulings on Bruce’s case, but would not be bound by them in the same way it would have been bound by a Supreme Court of Canada decision.
“This is nowhere near done,” Wishart said.
The Supreme Court dismissed Bruce’s application for leave to appeal “with costs,” but Wishart said he would not be out of pocket because insurance would cover fees awarded to the CFL and Cohon.