Arland Bruce III won’t be having his day in court.
The Supreme Court of Canada said Thursday it won’t hear Bruce’s concussion lawsuit against the CFL and former commissioner Mark Cohon. The decision came after two B.C. courts — the Supreme Court of British Columbia and British Columbia Court of Appeal — dismissed the suit, saying the Supreme Court previously ruled unionized employees must use labour arbitration and not the courts to resolve disputes that arise from their collective agreement.
Bruce’s lawyers argued the CFL’s collective agreement is unusual because athletes individually negotiate their pay, have no long-term disability insurance plan, are excluded from occupational health and safety regulations and aren’t entitled to workers compensation.
As usual in decisions on leaves to appeal, the Supreme Court gave no reasons for refusing to hear the case.
"I’d by lying if I said I wasn’t saddened and surprised," said Robyn Wishart, Bruce’s lawyer. "I’m surprised because I thought (Supreme Court of Canada) would hear it.
"You don’t get any reasons for it … you can’t answer the ‘Why?’ And that’s hard for me because so many families were waiting for this and obviously that’s the first question they have, but this isn’t over."
Wishart said she’ll take Bruce’s case to arbitration.
"We’ll file Monday and have his injuries looked at through arbitration," she said. "That’s obviously a process that isn’t necessarily to his advantage … but we’ll run with arbitration and see how it goes."
Predictably, the CFL was happy with the ruling.
"The CFL is very pleased with the Supreme Court of Canada’s decision," it said in a statement. "We hope that this decision brings finality to any proceedings in the courts with respect to concussion litigation against the CFL."
Bruce, 40, had originally named neuroscientist Dr. Charles Tator, the Krembil Neuroscience Centre of Toronto, 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 (2001-2014) with Winnipeg, Toronto, Hamilton, B.C. and Montreal, winning Grey Cups with the Argonauts (2004) and Lions (2011). Bruce filed his lawsuit in 2014.
In court documents, Bruce says he sustained "permanent and disabling" repetitive head trauma as a player and continues to suffer post-concussive symptoms, including depression, paranoia, delusions and other medical issues.
"All I can say is we took on a fight many people thought we shouldn’t start in the first place." Wishart said. "Our definition of a win has always been the public needs to know so if we look at it from the definition of what our goal was, to have people understand what’s happening, we win.
"Do we win in the world of law? Not right now. But do we win in the world of life? I can’t tell you how much we’ve changed people."
Wishart said Bruce continues to get his post-football life in order.
"If you were to look at where Arland Bruce III is now in comparison to when I met him, he is a productive member of B.C.," she said. "He’s now got his permanent resident card, he’s up to date and working on his child support, he’s getting constant and regular medical treatment and support.
"He’s happy and functioning so we win. But do we want to get the players compensation so they can live better lives? Absolutely."
And that’s why Wishart said a class-action claim for concussion-related damages involving over 200 former CFL players remains active. It was filed in Ontario in 2015 but had been on hold during Bruce’s legal proceedings.
"This is the law in British Columbia, it’s not the law in Ontario," Wishart said. "In some small way not knowing why keeps the door open for us to keep this fight alive in Ontario and that’s exactly what we’re going to do.
"Pick ourselves up, dust ourselves off and get ready to argue in the Ontario courts that the players have a right to their day in court. It’s a totally different argument, it’s players who’ve been out of the collective bargaining agreement for decades."