Sep 16, 2017

Case Dismissed for Illegal Procedure - Bruce v. Cohen, 2017 BCCA 186

Bruce v. Cohon, 2017 BCCA 186 (CanLII)

Case Dismissed for Illegal Procedure[1]

Bruce v. Cohon et al., 2017 BCCA 186

Case Comment: CanLII Connects

Kenneth Wm. Thornicroft, LLB/JD, PhD, Barrister & Solicitor

Peter B. Gustavson School of Business

University of Victoria, PO Box 1700 STN CSC

Victoria, British Columbia, CANADA V8W 2Y2

© Copyright 2017; Revised March 2018

The Claim in Context

Football is not a contact sport – dancing is a contact sport. Football is a collision sport and repeated collisions frequently result in head injuries, principally, concussions. In recent years, there has been an increasing recognition of the risks associated with repeated head injuries, particularly chronic traumatic encephalopathy (CTE). Recent litigation involving the National Football League (NFL) concerned whether the league was as forthcoming as it should have been about making the health effects of repeated concussions known to its players. On April 22, 2015, United States District Court (Eastern District of Pennsylvania) Judge Anita B. Brody approved a class action settlement potentially paying over $1 billion to former NFL players (the class includes approximately 20,000 retired players). On December 12, 2016, the Supreme Court of the United States refused to hear a challenge to that settlement agreement. Former players (who were retired as of July 7, 2014) had to register by August 7, 2017 to be eligible for a payout under the settlement agreement (the maximum individual payout being $5 million). Players who did not opt in to the settlement may pursue individual claims against the NFL.

Canadian Football League (CFL) players, relative to their NFL brethren, work in a decidedly different legal environment and are in a significantly disadvantaged legal position regarding pursuing litigation against the league for head trauma claims. While all NFL players are covered by some form of workers’ compensation scheme, CFL players are excluded from coverage under the various provincial statutory workers’ compensation regimes.[2] Both CFL and NFL players are employed under a combination of individual employment contracts, typically negotiated by an individual agent acting on the player’s behalf, and collective bargaining agreements (CBAs), negotiated by their respective players’ associations (although the former must be consistent with the latter).[3] However, Canadian labour law, in marked contrast to the United States, substantially narrows the scope of claims that may be pursued outside the legislatively mandated grievance arbitration process[4] (this is known as the Weber deferral doctrine). In Canada, any claim that “arises”, directly or inferentially, from the provisions of a CBA is one that falls within the exclusive jurisdiction of a grievance arbitrator.

Bruce v. Cohon et al. – The BCSC and BCCA Decisions

Arland Richard Bruce was a wide receiver who played for five CFL teams over the course of a 13-season professional career from 2001 to 2013 (he did not play in the CFL during the 2003 season but did play in two NFL games that year). Mr. Bruce alleged that during his CFL career he suffered multiple concussions and sub-concussive injuries and that, despite displaying ongoing symptoms, he was nonetheless allowed to continue playing for the Montréal Alouettes throughout the 2013 season. In a “Notice of Civil Claim” filed in the British Columbia Supreme Court on July 16, 2014, Mr. Bruce claimed damages against the CFL, its member clubs, its former commissioner (Mark Cohon) and certain other persons for “withholding and downplaying the effects of repetitive head trauma”. The central thrust of Mr. Bruce’s claim is set out his Notice of Civil Claim as follows: “…the CFL and Commissioner Cohon knowingly knew of the long term harmful effects of multiple concussion and sub-concussion on the plaintiff’s brain and actively concealed these facts from the plaintiff”.[5]

Mr. Bruce’s civil claim against the CFL was grounded in negligence for breaching its duty to take all reasonable and prudent steps to protect the players’ health, especially regarding concussions, “negligent misrepresentation of player safety issues respecting concussions and traumatic head injuries made to induce players to play football in the CFL”, and for negligence flowing from a “failure to institute available technology[6] to reduce the risks to players from traumatic head injuries, and to advise players of those risks” (Bruce v. Cohon, 2016 BCSC 419, at para. 43). The CFL and the other defendants responded to the claim with a motion to have it struck out on jurisdictional grounds, i.e., pursuant to the Weber deferral doctrine, the claim fell within the exclusive jurisdiction of an arbitrator appointed under the provisions of the CFL/CFLPA CBA.

Under Weber, the court must consider whether the particular dispute in question arises directly or indirectly from the provisions of the CBA, and if the arbitrator has the requisite authority to grant an effective remedy. British Columbia Supreme Court Chief Justice Hinkson held that Mr. Bruce’s claims essentially concerned player safety and equipment, and that an arbitrator appointed under the CBA would have the appropriate remedial authority to remedy Mr. Bruce’s claims should they ultimately prove meritorious. Chief Justice Hinkson further held that the defendants who were not parties to the CBA (including the CFL Alumni Association and its executive director, a physician and a neuroscience clinic) could nonetheless be “properly subject to the arbitral process even if they are not agents to [sic] parties to the agreement and owe independent duties to the employee” (para. 76). It should be noted that Mr. Bruce subsequently discontinued his claims against this latter group of defendants (see BCCA decision, para. 3). Chief Justice Hinkson concluded (para. 93): “I find that the disputes raised by Mr. Bruce arise from the 2014 Collective Agreement and can only be resolved through the grievance and arbitration process”.

Mr. Bruce appealed Chief Justice Hinkson’s decision and the British Columbia Court of Appeal heard Mr. Bruce’s appeal on March 3, 2017. On May 12, 2017, the appeal court issued its unanimous reasons for decision dismissing the appeal. Justice Newberry authored the panel’s decision (the panel also included Justices Stromberg-Stein and Fitch) and, save for Chief Justice Hinkson’s comments regarding whether the “Outside Parties” (the physician, the clinic, the CFL Alumni Association and its executive director) would be subject to an arbitral process under the CFL/CFLPA CBA, she endorsed Chief Justice Hinkson’s decision.

In particular, Justice Newberry found that while the “essential character” of Mr. Bruce’s claim as it was originally conceived, may have had a “double-aspect” (namely, compensation for injury and a broader public purpose of highlighting the risks associated with contact football), the action as against the CFL, its former commissioner and its member teams concerned “health and safety in the workplace, or more particularly, a workplace injury” (para. 87). Justice Newberry observed that a tort claim may fall within a grievance arbitrator’s exclusive jurisdiction provided it arises from the CBA. In this latter regard, Justice Newberry noted that various provisions of the CBA addressed issues such as player safety, medical and life insurance, and injury grievances. The standard player contracts (two separate appendices to the CBA) specifically provide that the club and/or its servants or agents (including medical staff) are not relieved from liability flowing from any negligence. Accordingly, Mr. Bruce’s claim – essentially a claim for compensation arising from a workplace injury – was one that could be adjudicated by an arbitrator appointed under the CBA. With respect to remedy, Justice Newberry held (at para. 91):

Finally, on the subject of whether effective redress could be afforded by the arbitration process in this case, although again a different result would have obtained if the Outside Parties had remained defendants and had not been agents of the CFL as pleaded, I am not persuaded the chambers judge erred in concluding that if Mr. Bruce had sought compensation pursuant to arbitration under the Collective Agreement for the matters raised in his [Notice of Civil Claim], he could have obtained an effective remedy as against the remaining defendants. [underlining in original text]

Accordingly, Mr. Bruce’s claim could not proceed in the civil courts but could be arbitrated under the CFL/CFLPA CBA. In this regard, Justice Newberry noted (at para. 92) “counsel for the CFL and Mr. Cohon undertook not to object to any application Mr. Bruce might make for an extension of time in which to bring his complaint before an arbitrator under the Collective Agreement”. However, so far as I am aware, no such grievance has been filed; rather, on August 11, 2017 Mr. Bruce applied to the Supreme Court of Canada (SCC) for leave to appeal.

The Weber Doctrine: Analysis & Commentary

The Weber doctrine continues to evolve – generally, in the direction of limiting the courts’ jurisdiction to hear and decide almost all disputes that arise in unionized workplaces. The scope of arbitral jurisdiction continues to expand in lockstep with this trend. Canadian arbitrators are “courts of competent jurisdiction” under section 24(1) of the Canadian Charter of Rights and Freedoms with authority to grant section 24 remedies (Weber). An employer’s claim against a bargaining unit employee for negligently damaging its property must be arbitrated (New Brunswick v. O’Leary, [1995] 2 S.C.R. 967). Arbitrators must interpret and apply human rights legislation where it is appropriate to do so (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157), although arbitrators do not have exclusive jurisdiction over all human rights claims that arise in unionized workplaces (see, e.g., Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185). Arbitrators can adjudicate various tort claims including interference with contractual relations (Jadwani v. Canada (Attorney General), 2001, Ont. C.A., leave to appeal to SCC refused), deceit, negligent misrepresentation and conspiracy (Maynard v. Arvin Ride Control Products, [2000] O.J. No. 937, Ont. S.C.J.), “defamation, negligence, malice and arbitrary treatment” (Haight-Smith v. Neden, 2002 BCCA 132, leave to appeal to SCC refused; see also Giorno v. Pappas, 1999 CanLII 1161) and claims for “intentional infliction of emotional distress, breach of the duty of good faith, breach of fiduciary duty, breach of the duty of care and breach of the…Charter” (Gaignard v. Canada (Attorney General), 2003 CanLII 40299 at para. 5 (Ont. C.A.)).

Arbitration was held to be the exclusive forum to hear a dispute about the administration of a pension fund even though the dispute involved several different unions in multiple bargaining units (and also concerned other non-union employees). The SCC held in favour of the arbitrator’s exclusive jurisdiction despite the “procedural difficulties, particularly because of the multiplicity of possible proceedings and of potential conflicts between separate arbitration awards in respect of the different bargaining units” (Bisaillon v. Concordia University, [2006] 1 S.C.R. 666, at para. 58). Arbitrators have jurisdiction over workplace allegations of sexual harassment and assault even though the amount of damages that might ultimately be awarded is less than what might be awarded by a civil court (K. A. v. Ottawa (City), 2006 CanLII 15128 (Ont. C.A.); see also Giesbrecht v. McNeilly et al., 2008 MBCA 22).

Arbitrators have broad remedial authority and are empowered to issue a wide variety of both interim and final orders including reinstatement orders, orders cancelling disciplinary action (including dismissal) coupled with a substitution of a lesser disciplinary sanction, declaratory orders, compensatory damages and monetary orders (including interest). Arbitrators can issue orders in the form of rectification of the CBA and can order restitution where there has been unjust enrichment. Arbitrators may award aggravated and punitive damages in appropriate cases (for a more complete discussion of arbitral remedies, see Kenneth Wm. Thornicroft, “The Arbitration Process”, in Palmer & Snyder, Collective Agreement Arbitration in Canada, Sixth Edition, Chapter 5).

However, not all claims arising in a unionized environment fall within the arbitrator’s exclusive jurisdiction. For example, in Pleau v. Canada (Attorney General), 1999 NSCA 159, leave to appeal to SCC refused) a claim by a former employee, his spouse and two infant children, filed “against the Attorney General of Canada and nine federal public servants [for conspiracy] to cause injury and damage, [breach of] fiduciary duty and [abuse of] office by virtue of their wrongful conduct towards Mr. Pleau” (para. 6) was not within an arbitrator’s exclusive jurisdiction principally because the dispute was outside the CBA and, in any event, an arbitrator could not provide an effective remedy (but, on this latter point, cf. Vaughan v. Canada, [2005] 1 S.C.R. 146). In London Life Insurance Company v. Dubreuil Brothers Employees Association, 2000 CanLII 5757 (Ont. C.A.), leave to appeal to SCC refused, the Ontario Court of Appeal held that an arbitrator had no jurisdiction over a third party insurer that denied long-term disability benefits under an insurance policy that was not incorporated into the CBA, and where the employer’s sole obligation under that agreement was to pay the policy premiums (which it had done).

An arbitrator does not have jurisdiction over a claim that is based on an alleged pre-employment contract (Goudie v. Ottawa (City), [2003] 1 S.C.R. 141). An arbitrator was held not to have any jurisdiction to adjudicate a defamation action brought by an employer against the president of the union certified to represent its employees (the president claimed “the Company’s production practices compromised safety in the workplace”; Fording Coal Limited v. United Steelworkers of America, Local 7884, 1999 BCCA 38, para. 4) or to adjudicate a claim brought by a former employee for malicious prosecution and intentional infliction of mental distress (Piko v. Hudson’s Bay Co., 1998 CanLII 6874, Ont. C.A., leave to appeal to SCC refused).

Fundamentally, the Weber doctrine is a component of a larger labour relations system concerned with balancing collective and individual rights within unionized workplaces. As explained in Bisaillon, supra, if a trade union is granted exclusive representation and negotiation rights for a specified group of employees (the “bargaining unit”),[7] and after a collective agreement has been concluded, the union’s “monopoly on representation also extends to the implementation and application of the agreement” (para. 24). However, this monopoly “also has a significant impact on employees’ rights…[because] collective representation proscribes the individual negotiation of conditions of employment”; “a screen is erected between the employer and the employees [that] prevents the employer from negotiating directly with its employees and in so doing prevents the employees from negotiating their individual conditions of employment directly with their employer” (para. 25). Disputes regarding the interpretation and application of a CBA are not litigated but, rather, “will be negotiated with the union or settled through the grievance arbitration process” (para. 27). If the union fails to fairly represent an individual employee (for example, by unreasonably refusing to pursue a legitimate grievance), that employee’s remedy lies in a complaint to a labour relations board – for breach of the union’s “duty of fair representation” – rather than in a damages claim in the civil courts (see Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298).

As noted above, the Weber doctrine does not foreclose civil court actions merely because the employee works in a unionized workplace, and there have been a few cases where professional athletes have filed a lawsuit rather than a grievance. For example, in Robitaille v. Vancouver Hockey Club Limited, 1981 CanLII 532 (B.C.C.A.), a case decided before Weber, a professional hockey player was awarded damages flowing from an incorrect medical diagnosis by the team’s medical staff. The trial judge rejected the club’s position that the player’s claim was barred by the existence of a CBA and that finding was not challenged on appeal.[8] In Club de hockey les nordiques (1979) inc. c. Lukac, 1987 CanLII 366 (Que. C.A.), a hockey player signed an agreement with the Québec Nordiques of the National Hockey League (NHL), but later sought a judicial declaration that the agreement was null and void due to misrepresentation. The club challenged the court’s jurisdiction to decide the matter by reason of the arbitration provision contained in the NHL’s CBA, but this argument was rejected on the ground that the arbitrator did not have jurisdiction to decide if the player’s individual contract was void ab initio.

The Robitaille and Lukac decisions predate Weber and, as such, are almost certainly no longer good law (this was the view of the Court of Appeal in Bruce v. Cohon). However, Belanger v. Pittsburgh Penguins Inc. et al., [1998] O.J. No. 427, 17 C.P.C. (4th) 245 (Ont. C.J.-Gen. Div.) is a post-Weber decision where the player’s civil action was allowed to proceed. Mr. Belanger claimed that he was never properly informed about the nature of an injury he sustained during an NHL hockey game and therefore continued to play, ultimately shortening his career. The club applied to have Mr. Belanger’s claim dismissed on jurisdictional grounds and was partially successful, but his claim for negligence and breach of duty were allowed to proceed as they could not “rationally be considered to be matters arising out of the Collective Agreement” (para. 11) and because, relying on Robitaille, there was “nothing in the agreement that expressly or impliedly excluded liability in tort” (para. 12). However, in my view, the chambers judge in Belanger missed the point – first, the fundamental question is not whether the CBA or the player’s standard contract excluded tort liability, but rather whether the tort claim pleaded arises from the CBA and thus presumptively falls within the arbitrator’s bailiwick; second, in O’Leary, supra, the SCC specifically held that “negligence can be the subject of an action only if the dispute does not arise from the collective agreement” (para. 4). On this latter point, the Court of Appeal in Bruce v. Cohon stated (at para. 89):

…the law is clear that a tort claim, including negligence, can be prosecuted in a labour arbitration as long as the subject matter of the dispute is “covered by the collective agreement”…The key question concerning the “ambit” of the Collective Agreement is whether the exception it makes to the principle of exclusive representation (by requiring players to negotiate their regular compensation directly with their employers, and to do so within the confines of the Standard Player Contracts), takes the case out of the arbitration scheme…Very arguably...we would be putting form over substance if we were to regard Mr. Bruce’s contractual rights as arising under two separate agreements one or both of which runs contrary to the principle of exclusive representation.

I now turn to the fundamental question that the SCC will have to address should it grant leave in the Bruce case; namely, How should the Weber deferral doctrine apply in the unique circumstances of professional sport where the player’s employment relationship is governed by both an individual contract of employment and a CBA?

The Weber Doctrine and Professional Sports Leagues

Players in all major North American sports leagues, including the CFL, are represented by organizations known as “players’ associations”. These associations share many attributes with conventional trade unions, the principal one being the negotiation of a CBA, but they are typically not certified trade unions under applicable collective bargaining statutes.[9] The players’ associations bargain with their respective leagues, including the CFL, on the basis of a recognition agreement (see, e.g., Article 1.01(a) of the CFL/CFLPA CBA).

The various leagues’ CBAs typically provide for basic terms and conditions of employment (including minimum and occasionally, maximum, salaries[10]), but individual employment contracts are negotiated directly between the player (usually through an agent who is registered with the players’ association) and a member club. Although the form and substance of these individual contracts are mandated, at least to a degree, by a “standard player’s contract” that forms part of the CBA, players’ associations are not directly involved in the individual negotiations between a player and a league team. In the case of the CFL, Article 9 of the current CBA mandates a minimum salary ($53,000 for the 2017 season), but Article 28 specifically states that member clubs shall negotiate a “Standard Player Contract” with the player or his designated representative (the standard contract form and contents are mandated by the CBA and, in most cases, the negotiation principally, if not exclusively, is only in relation to the player’s season compensation). Indeed, the CFLPA, by Article 1.01(b) of the CBA, “shall not bargain with respect to regular season compensation for individual professional football Players” except in regard to a minimum salary.

CFL players, unlike virtually all other unionized workers, are not covered by provincial workers’ compensation schemes. There is no provision in the CFL/CFLPA CBA for long-term disability insurance benefits even though many unionized employees outside professional sports are covered by such insurance plans and are entitled to long-term disability benefits in the event they are unable to work due to injury, illness or disability. The “just cause” standard relating to the termination of bargaining unit employees[11] has no application in the world of professional sports, especially in the CFL where contracts are not even guaranteed for their term (for example, a player’s contract could be terminated if he were no longer medically fit to play or if he is simply being replaced – “cut” – in favour of another player on the team’s roster). Unlike other employees, the player’s services may be unilaterally transferred to another employer within the league (i.e., the player can be “traded”, although a select few players do negotiate “no-trade” or “limited movement” provisions).

The CFL/CFLPA CBA includes a grievance arbitration provision (Article 4). In Canada, both federal and provincial collective bargaining statutes mandate that the latter be included in a CBA. However, unlike the typical CBA where grievances can only be filed by the union, the CFL/CFLPA agreement permits individual players to file grievances, and they may do so even if not currently under contract. The arbitration provision establishes a relatively speedy hearing process (and there is a separate provision for an expedited hearing), prehearing disclosure, requires the arbitrator to render a decision within 30 days following the hearing, and provides for costs to be paid to the player if he obtains a monetary award. Somewhat curiously, the CFL’s arbitration process is governed by the Arbitration Act applicable in the team’s home province – legislation that principally concerns commercial disputes – rather than the relevant provincial collective bargaining statute.[12]

In my view, there is a reasonable case to be made, given the unique features of CBAs in professional sports, that the courts should not defer to arbitration especially where the remedy sought arguably falls outside the arbitrator’s mandate. The CFL/CFLPA CBA provides, in Article 24, for “injury grievances”, which concern whether “the Player is either fit to play skilled football or unfit to play skilled football” following an assessment by a neutral physician whose determination “shall not be subject to review”. However, Mr. Bruce’s claim is not that he was unreasonably declared unfit to play; rather, he asserts that there was, in effect, a pattern of denial and obfuscation among the CFL, its member clubs and other individuals, regarding the effects of concussions and that players were misled and continued to play when they should not have been allowed to do so.

The Weber deferral analysis directs the court to first identify “the essential character of the dispute” and second, to then determine if the dispute, either expressly or inferentially, falls within the ambit of the collective agreement. Third, there are other considerations as identified in Bisaillon, supra (at paras. 40 and 42):

When a grievance arbitrator finds it impossible to resolve a dispute or a part of a dispute because he or she does not have jurisdiction over the parties, the ordinary courts retain jurisdiction over the dispute (Gagnon, at p. 547). Such situations are likely to arise where the grievance arbitrator cannot claim to have authority over persons considered to be third parties in relation to the collective agreement and cannot render decisions against them.

Grievance arbitrators have very broad powers, both explicit and implicit, so as to be able to grant any remedies needed to implement the collective agreement…Despite this broad arbitral jurisdiction, the ordinary courts retain a residual inherent jurisdiction in any exceptional cases in which a grievance arbitrator might lack the powers he or she needs to grant the remedy required to resolve a dispute: Weber, at para. 57; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] 2 S.C.R. 495.

Mr. Bruce’s civil action named the CFL, its member clubs and certain other individuals and entities who were not parties to the CBA[13] as defendants. As originally framed, the claims against these latter “non-CBA parties” would not have been subject to the Weber deferral doctrine consistent with the SCC’s decision in Bisaillon, supra. Although Chief Justice Hinkson held that these “strangers” to the CBA could nonetheless be “properly subject to the arbitral process” (para. 76), this conclusion was affirmatively rejected on appeal (see paras. 83-86). However, since Mr. Bruce’s counsel had advised the court during oral argument that the claims against these so-called “Outside Parties” would be discontinued, the court concluded (para. 91):

…I am not persuaded the chambers judge erred in concluding that if Mr. Bruce had sought compensation pursuant to arbitration under the Collective Agreement for the matters raised in his [Notice of Civil Claim], he could have obtained an effective remedy as against the remaining defendants. (underlining in original text).

Thus, the Court of Appeal ruled that Mr. Bruce’s claim against the remaining defendants was barred by the Weber deferral doctrine.

As previously noted, there is a pending leave application before the SCC. While the high court (through a 3-justice panel) does not issue written reasons in a leave decision, leave is not likely to be granted unless the issue raised by the appeal is one of fundamental public importance and/or where there is a pressing need to clarify the existing law.[14] Insofar as the leave application is concerned, Mr. Bruce’s position, in essence, is that the unique nature of collective bargaining in professional sports, coupled with the athletes’ exclusion from workers’ compensation schemes, places the players’ in a vulnerable position and that grievance arbitration is an inadequate forum for the resolution of serious work-related injury claims. In his leave application, Mr. Bruce asserts that “an unduly strict application of Weber…effectively closes the courthouse door [for] professional athletes [and] leaves a highly vulnerable class of worker without redress for serious injuries, and sets a dangerous precedent for other non-traditional industries”.

The Weber deferral doctrine does not neatly fit into the current collective bargaining regimes in professional sports. These regimes, in many important respects, are fundamentally distinct from most other collective bargaining relationships. Among other distinctions, the players individually negotiate their compensation (including bonuses and deferred compensation)[15] – surely the most fundamental role that unions fulfill in most other collective bargaining relationships – and other aspects of their employment (such as when a player negotiates a “no-trade” provision); the players are not covered by provincial workers’ compensation schemes; the players are not protected by typical CBA provisions granting “seniority” protections, or that require the employer to demonstrate “just cause” for dismissal; the players’ contracts, absent “no trade” clauses, may be freely transferred from one club to another; and, at least in the CFL, the players have virtually no security of tenure even though they may have signed an individual contract that extends for two or three seasons.[16] The Court of Appeal, at para. 4, recognized the highly “unusual” nature of the CFL/CFLPA CBA.[17]

Turning to Mr. Bruce’s individual claim, although he might be entitled to limited redress under the CBA, an arbitrator would not seemingly have the jurisdiction under the CBA to award him the substantial damages he seeks in his civil claim, including damages flowing from a shortened career (and, given the mounting evidence about CTE, possibly life) and some measure of permanent disability. The summary arbitration process provided for in the CBA also limits a player’s ability to present the detailed expert evidence that would typically be presented in a civil claim before the courts and, of course, pre-trial procedures such as examination for discovery and the availability of a jury trial, are not available in a labour arbitration process. Arbitration is essentially a private dispute resolution process and Mr. Bruce’s claim, although one principally seeking individual redress, nonetheless has a broader public interest component and this aspect of his case would surely be best served by a public trial rather than a private arbitration.[18]

Finally, it should be noted that within the broader unionized sector, the individual, rather than collective, negotiation of fundamental terms of employment (and, in particular, compensation[19]), is not unique to professional sports. For example, unionized university professors, and notwithstanding that their employment is otherwise governed by a CBA, typically individually negotiate their salaries, teaching loads, research funding and other workload matters. A similar pattern prevails in other sectors such as movie/television production, live theatre and professional dance companies where a form of “umbrella” collective agreement is in place having been negotiated with a trade union or association (see, for example, Walden v. Danger Bay Productions Ltd., 1994 CanLII 515 and Royal Winnipeg Ballet v. M.N.R., 2006 FCA 87).

In Walden and Royal Winnipeg Ballet, the actors and dancers who, like CFL players, negotiated individual contracts, were held not to be employees, despite the presence of an overarching agreement akin to a collective agreement that defined, or set minimum standards regarding, their terms of engagement. Indeed, the position of CFL players is strikingly similar to the dancers in Royal Winnipeg Ballet in that while the players are subject to direction and control by the team’s coaching staff and other personnel, and travel from one location to another during the course of the season, other aspects of their professional lives suggest that they are more properly characterized as independent contractors, even though their individual agreements (as was the case for Ms. Walden) describe them as “employees”. The players are responsible for maintaining and improving their own skills (and often personally hire trainers and other contractors to assist with their off-season training programs); the players face a “risk of loss” in the sense that their contracts are not guaranteed for the full contract term (thus, the team can terminate a player with a 3-year contract, with no or only limited further compensation, after completing, say, the first year of that agreement – see Article 10 of the Standard Player Agreement) and, further, players' contracts can be terminated if they are unable to perform due to injury; finally, the players can profit from selling their “image” through various third-party contracts regarding, for example, wearing a certain brand of footwear or endorsing certain commercial products or services.

While I am not suggesting that CFL players are independent contractors rather than employees (in my view, Royal Winnipeg Ballet was wrongly decided – I consider Justice Evans’ dissent to be the more compelling analysis), there are nonetheless many significant differences between professional athletes and ordinary bargaining unit employees working in the vast majority of unionized workplaces. Given these distinctions, the Weber principle that all workplace disputes that are in some way connected to the CBA fall within the exclusive jurisdiction of an arbitrator, may have to be rethought in the context of professional sports and other similar industries where the relationship between the parties is a hybrid of both individual and collective negotiation. Bruce v. Cohon presents a unique opportunity for the SCC to provide some needed guidance in this regard.


Postscript

The Supreme Court of Canada dismissed Mr. Bruce's application for leave to appeal on Thursday, March 15, 2108. Leave to appeal was refused by a decision endorsed by all nine judges of the court. As is customary, the court did not give any reasons for its decision (see Arland Richard Bruce v. Mark Steven Cohon, et al., 2018 CanLII 12964). On March 18, 2018, the Canadian Football Players' Association filed a grievance against the Canadian Football League seeking compensation on behalf of current and former CFL players who sustained concussions and other related brain, head and neck injuries (see <https://cflpa.com/cflpa-files-grievance/>).


[1] “Illegal procedure” is an umbrella term for various procedural infractions in North American professional football (for example, an offensive player, such as guard or receiver, lining up beyond the scrimmage line) that result in a five-yard penalty; see Canadian Football League 2017 Rule Book online at: <https://d3ham790trbkqy.cloudfront.net/wp-content/uploads/2017/07/2017-CFL-Rule-Book-Final.pdf>.

[2] On August 23, 2016, the Canadian Football League Players’ Association (CFLPA) issued a press release indicating that it had submitted a brief to the Alberta government arguing in favour of extending workers’ compensation coverage to professional football players in that province (see <https://cflpa.com/35293-2/>). As of September 2017, professional football players continue to be excluded from Alberta’s workers’ compensation legislation.

[3] The current CFL CBA negotiated on the players’ behalf by the CFLPA can be accessed at: <https://cflpa.com/download/collective-bargaining-agreement-2014-2018/> and the current NFL CBA can be accessed at: <https://www.nflpa.com> [see “CBA”].

[4] Federal and provincial collective bargaining statutes provide that disputes regarding the interpretation or application of a CBA must be resolved via a grievance arbitration process. Subsection 84(2) of the B.C. Labour Relations Code is typical: “Every collective agreement must contain a provision for final and conclusive settlement without stoppage of work, by arbitration or another method agreed to by the parties, of all disputes between the persons bound by the agreement respecting its interpretation, application, operation or alleged violation, including a question as to whether a matter is arbitrable.”

[5] A separate $200 million class action claim was filed in Ontario on May 29, 2015; former CFL players Korey Banks and Eric Allen are the lead representative plaintiffs and the class now includes more than 200 former players (see <http://www.tsn.ca/former-players-file-200m-lawsuit-against-cfl-1.300462>. I understand that this class action proceeding is being held in abeyance pending the final outcome of the Bruce v. Cohon litigation. On September 13, 2017, the CFL and the CFLPA made a joint announcement regarding player safety, the centrepiece of which was a prohibition of in-season “full contact padded practices” – see <https://cflpa.com/cfl-and-cflpa-work-together-to-deliver-significant-advances-on-player-safety/>.

[6] This allegation refers to a specialized helmet known as the Riddell Revolution IQ Head Impact Telemetry System Helmet, which includes sensors that monitor hits to the head – the Calgary Stampeders were the only CFL team to use this technology (as of 2008) during Mr. Bruce’s playing career.

[7] The union’s exclusive representation rights are almost always secured via a “certification” process whereby a labour relations board issues a certification order following a representation vote (or, in some jurisdictions, based on the union demonstrating majority support by submitting signed union membership cards). However, players’ associations, including the CFLPA, are not certified but, rather, operate under “voluntary recognition” agreements whereby the league agrees to recognize, and negotiate with, the association as the players’ bargaining agent.

[8] The trial judge stated (at para. 29): “…It is doubtful that these decisions have any application to collective agreements to which the concept of certification under labour legislation does not apply. There is, in any event, nothing in the decisions which would indicate that the duty of care imposed by the general law is eliminated or affected by the existence of a collective agreement, even one entered into by a certified bargaining agent. If the defendant’s position is right, the result is that an employer is not under any duty of care to his employees where the relationship between him and his employees is governed by a bargaining agreement. Only clear words could justify the conclusion that that result was intended was intended by the legislature.” In Wilson v. Vancouver Hockey Club, 1985 CanLII 775 (B.C.C.A.), also a pre-Weber decision, the player’s claim for damages flowing from the team doctor’s alleged negligence in diagnosing a skin cancer was dismissed. The club never even argued whether the player’s claim was barred by the existence of a collective agreement.

[9] In Orca Bay Hockey Limited Partnership v. National Hockey League, 2007 CanLII 31404, the B.C. Labour Relations Board refused to grant an application for certification principally because to do so would disrupt the existing league-wide bargaining process. In a similar vein, the Alberta Labour Relations Board, adopting the analytical framework in the Orca Bay decision, refused an application to apply the Alberta collective bargaining statute to the NHL teams operating in Alberta (National Hockey League Players’ Association v. Edmonton Oilers Hockey Corp., 2012 CanLII 58944).

[10] Even where the applicable CBA does not provide for a maximum salary (as is the situation under the CFL agreement), where there is a total salary “cap” for each team (as is the case for all major professional sports leagues except Major League Baseball), there is a de facto, albeit flexible, salary ceiling since all of the team’s player contracts must fit within the team’s salary cap.

[11] Canadian labour statutes provide that bargaining unit employees, with some jurisdictions excepting probationary employees, can only be disciplined or dismissed if the employer has “just cause” to do so; see, for example, the B.C. Labour Relations Code, subsection 84(1): “Every collective agreement must contain a provision governing dismissal or discipline of an employee bound by the agreement, and that or another provision must require that the employer have a just and reasonable cause for dismissal or discipline of an employee, but this section does not prohibit the parties to a collective agreement from including in it a different provision for employment of certain employees on a probationary basis.”

[12] In British Columbia, the Arbitration Act, R.S.B.C. 1996, c. 55, presumptively governs the arbitration process rather than Part 8 of the Labour Relations Code, R.S.B.C. 1996, c. 244. There are significant differences between the two arbitration processes including, among other things, the form of appeal available. In my view, it is at least arguable that this attempt to bypass the Labour Relations Code provisions regarding grievance arbitration is not lawful. The Court of Appeal, at para. 42, acknowledged this anomaly but did not make any affirmative findings regarding whether the Arbitration Act or the Labour Relations Code would govern an arbitration under the CBA.

[13] The parties to the current CBA are the CFLPA, the CFL and the “Canadian Football League Player Relations Committee” which is described in the agreement as the “representative of all the Member Clubs of the Canadian Football League”. Mr. Bruce’s Notice of Civil Claim filed July 16, 2014 also named a neuroscientist, a clinic specializing in head and spinal cord injuries, the players’ alumni association and its executive director. As previously noted, the claim has now been discontinued against these latter so-called “outside” defendants.

[14] The SCC, on its website page entitled “Frequently Asked Questions”, advises: “In most cases, appeals are heard by the Court only if leave to appeal is given. Such leave, or permission, will be given by the Court when a case involves a question of public importance.” SCC statistics for the past decade show that the court receives about 550 leave applications each year but that only about 10% of the leave applications are successful.

[15] Article 1.01(b) of the CFL/CFLPA CBA specifically prohibits the CFLPA from negotiating individual player compensation.

[16] As previously noted, CFL contracts are not “guaranteed” and may be terminated by the club prior to the end of the contract term. Even in the NHL, where player contracts are generally understood to be “guaranteed” for the contract term, individual clubs, in some circumstances, can terminate the player’s contract prior to the end of the contract term through the CBA’s “buyout” provisions.

[17] As did the Alberta Labour Relations Board in N.H.L.P.A. v. Edmonton Oilers, supra, at para. 6: “Professional sports leagues are a very different structure than that commonly seen in the labour relations work environment…”.

[18] The Court of Appeal, at para. 83, specifically acknowledged this point: “The dispute could be seen as having a ‘double aspect’ – as being partly about compensation for a workplace injury, but also about illuminating the effects of concussion in athletes and efforts allegedly made by the CFL and associates to suppress public knowledge and concern about concussions.”

[19] As previously noted, professional athletes, including CFL players, individually negotiate season salary and other compensation, typically using an agent who will, in turn, charge the player a fee for these negotiation services. However, the form of the contract is mandated by the CBA. Given that the CBA does not provide for any individual player compensation (except, in Article 9, the minimum player salary), it might be argued that the CBA is not an employment contract (at least in Quebec where Mr. Bruce played his final CFL season with the Montréal Alouettes). In Isidore Garon ltée v. Tremblay; Fillion et Frères (1976) inc. v. Syndicat national des employés de garage du Québec inc., [2006] 1 S.C.R. 27, Justice Deschamps, for the majority, observed (at para. 34): “It cannot be said that a contract of employment exists if there is no agreement on remuneration. This goes to the root of the contract.” Further, it is at least arguable that the CFL/CFLPA was not produced following “collective bargaining” and is not a “collective agreement” as both terms defined in section 1 of the B.C. Labour Relations Code inasmuch as the CFLPA does not negotiate, and the agreement does not provide for, “rates of pay”. This point was never argued in Bruce v. Cohon since the parties conceded there was an “employment relationship” between Mr. Bruce and the B.C. and Montréal clubs, and that the CBA was a “collective agreement” for purposes of the B.C. Labour Relations Code – see the Court of Appeal decision at para. 29. However, if the CBA is not a “collective agreement”, the Weber doctrine may not be applicable (but on this point, cf. Ferrari v. University of British Columbia, 2014 BCCA 18, where the court concluded that a non-union employee could not pursue a civil action for wrongful dismissal in light of the arbitration provision contained in a form of “collective agreement” governing the employment of non-union personnel).