Arland Bruce III’s lawyer is prepared to take the former CFL player’s concussion lawsuit to the Supreme Court of Canada despite a second legal setback.
The B.C. Court of Appeal unanimously dismissed Bruce’s lawsuit on Friday, upholding a B.C. Supreme Court decision in March that issues raised in the suit are part of a collective bargaining agreement between the CFL and CFL Players’ Association and should be resolved through the grievance and arbitration process, not the courts.
Robyn Wishart, Bruce’s lawyer, wasn’t surprised by Friday’s verdict, but she said her client’s legal fight isn’t over.
"We’ve been waiting for our chance to take this to the Supreme Court of Canada," Wishart said in a telephone interview. "That’s been where we knew it had to go from Day 1 for us to be successful.
"Would we have liked to see something different? Sure, but if you understand the way that the law works, this is the path we knew we were on all along."
Up next for Wishart is to apply for a leave to appeal to the Supreme Court of Canada. If it’s accepted, Wishart will then have the chance to present Bruce’s case to the country’s highest court.
The CFL issued a brief statement following Friday’s ruling.
"The CFL is very pleased with the Court of Appeal’s decision," the league said. "We hope that this decision brings finality to any proceedings in the courts with respect to concussion litigation against the CFL."
The defendants in Bruce’s case include the CFL, former commissioner Mark Cohon and all nine teams. Bruce, 39, had originally named neuroscientist Dr. Charles Tator, the Canadian Football League Alumni Association and its executive director, Leo Ezerins, in his suit but action was discontinued against them as they weren’t bound by collective agreement.
Bruce played 14 seasons in the CFL with Winnipeg, Toronto, Hamilton, B.C. and Montreal, winning Grey Cups with the Argonauts (2004) and Lions (2011). In court documents, Bruce alleges he suffered concussions while playing for B.C. in ’12 and was allowed to return for a playoff game while still feeling the effects.
The documents state Bruce was still showing symptons the following year with Montreal. Bruce also says he continues to suffer from chronic traumatic encephalopathy (CTE), depression, paranoia, delusions and other issues.
In her judgement, Madam Justice Mary Newbury called the CBA between the CFL and its players "an unusual one."
"For one thing, it does not purport to contain all the terms and conditions of employment of CFL players," she wrote. "Instead, it requires that players negotiate certain terms of their employment (including the important matter of regular season compensation) with the clubs directly rather than through the Players’ Association.
"For another thing — and for obvious reasons — the collective bargaining agreement continues no provision for seniority or security of employment: and the terms dealing with workplace injury are geared to determining with despatch whether players are fit to return to playing ‘skilled football.’ "
Newbury also pointed out the football players are exempt from the Workers’ Compensation Act, and as a result "they are not precluded from the Act from suing their employers for workplace injuries."
"The path we’re on has been strengthened by the court acknowledging the unusual nature of this employment relationship," Wishart said. "The judge focused her attention on the fact this was an ‘unusual contract’ at least four times … the judge said they’re a vulnerable class, there is no WCB that applies and they were concerned that these people did not have a remedy.
"The Supreme Court of Canada looks at issues that are a matter of public importance and concussion in sport right now is at the forefront of the public’s concern. With that, we hope the Supreme Court of Canada will give us an opportunity to let our story be heard. Either way, the decision of the Court of Appeal is that there is a forum available for the players."
The CFL also faces a $200-million class action lawsuit filed in Ontario Superior Court last year by former players Korey Banks and the league Eric (The Flea) Allen.