Dec 14, 2017

AREAS OF LAW: Negligence; Failure to warn; Professional football; Labour law; Collective agreement

Bruce v. Cohon, 2017 BCCA 186 (CanLII)

Characterizing the essential nature or substance of a dispute under a collective agreement involves determining the legal crux of the action as pleaded, and is thus a matter of law and subject to a correctness standard of review.~

BACKGROUND: The Appellant, Arland Bruce, played professional football for various clubs of the Canadian Football League (“CFL”) between 2001 and 2014. He asserted that he suffered concussions when playing for the Respondent BC Lions in 2012, and that he was still experiencing symptoms when he played for the Respondent Montreal Alouettes in 2013. He brought a claim against all the clubs in the CFL, the CFL itself, and others associated with them, alleging negligence, failure to warn, and negligent misrepresentation. He said that the Respondents knew or ought to have known that he should not have been permitted to continue playing “despite displaying the ongoing effects of concussion to medical professionals and coaching staff”. The Appellant was subject to the collective agreement between the CFL, its member clubs, and the CFL Players’ Association. The collective agreement exempted the CFL players from the Workers’ Compensation Board’s regulations regarding workplace safety, but the players were not precluded by the Workers’ Compensation Act from suing their employers for workplace injuries. The chambers judge concluded that the unusual features of the collective agreement did not distinguish its scope from that of comparable collective agreements. He applied the model set out in the Supreme Court of Canada case of Weber v. Ontario Hydro, which provides that once it is shown that the parties’ dispute arises from a collective agreement, the claimant may proceed only under the dispute resolution mechanism set out in the agreement. To fall within the Weber model, the dispute’s “essential character” must concern a subject matter covered by the collective agreement. The court must then go on to consider whether the collective agreement can provide the plaintiff with an effective remedy. The chambers judge rejected the Appellant’s argument that the fact he was required to negotiate certain terms of his contract directly with the employers meant that the bargaining agent had less than exclusive bargaining authority. The judge also rejected the assertion that permissive language surrounding arbitration in the collective agreement rendered the grievance and arbitration procedures under the collective agreement optional and non-exclusive. The Appellant argued that the essential character of the dispute was “compensation”. The chambers judge found that if this argument prevailed, disputes over any condition of employment could be seen as a matter of compensation. The Appellant could then be entitled to all the rights and benefits of collective bargaining without surrendering his individual right to sue. The judge held that the essential character of the dispute related to health and safety. The chambers judge concluded that the Appellant had been entitled to seek compensation by way of a grievance and arbitration under the collective agreement, and he could have obtained a meaningful remedy. The court had no jurisdiction to hear his claims.

APPELLATE DECISION: The appeal was dismissed. The Appellant argued that the chambers judge erred in failing to consider the cause of action in the amended notice of civil claim to determine the essential character of the dispute, and by concluding that the collective agreement provided for exclusive representation, thereby putting the dispute within the ambit of the arbitration clause. The Court of Appeal considered the standard of review to be correctness, given that characterizing the essential nature or substance of a dispute involves determining the legal crux of the action as pleaded, and is thus a matter of law. Applying a correctness standard, the Court found no error in the chambers judge’s reasons. In particular, although the chambers judge gave considerable attention to the collective agreement, he did consider the essential character of the dispute as a separate matter. He viewed one essential character of the dispute as relating to health and safety and, since the collective agreement addressed the subject of players’ health and safety, he ruled that the dispute arose from the collective agreement. The Court considered it significant that he did not purport to define “the” essential character of the dispute, but rather “one” essential character. The standard of review on the issue of contractual interpretation was a deferential one, and the Court did not find that the chambers judge committed a palpable and overriding error in deciding that the players’ obligation to negotiate their own terms of compensation could be seen as a delegated power sanctioned by the collective agreement. Accordingly, the terms of the collective agreement did not distinguish its scope from comparable agreements. Finally, the chambers judge did not err in concluding that if the Appellant had sought compensation pursuant to the collective agreement for the matters raised in his notice of civil claim, he could have obtained an effective remedy.