Vernon Pahl and Jordan Bank Act as Counsel for Co-Defendants in Successful Application Dismissing Action in High-Profile Sports Concussion Lawsuit

This action was brought by Arland Bruce, a former professional football player in the CFL, against a number of defendants, including all of the CFL member clubs, the CFL’s former commissioner, and the CFL Alumni Association (the “CFLAA”) and its Executive Director, Leo Ezerins. Guild Yule LLP represents the CFLAA and Mr. Ezerins.


In his notice of civil claim, Mr. Bruce claims he suffered a multitude of injuries as a result of playing professional football. His principal complaint relates to the multiple concussions he alleges he incurred while he was a player. Primarily, he alleges that the defendants engaged in a concerted campaign of disinformation, part of which included conducting and publishing misleading research.


The defendants applied to have the action dismissed, on the basis the Court had no jurisdiction to hear the dispute because it fell squarely under the terms of a collective agreement and is a matter which is properly within the jurisdiction of a labour arbitrator.


The Court found in favour of the defendants on all points and dismissed the action in its entirety. In particular, Hinkson C.J. held:


  • Mr. Bruce’s dispute does not extend beyond what was expressly or inferentially provided for in the collective agreement, and that it is thus within the ambit of that agreement;


  • the dispute between the parties, when viewed in its essential character, arises from the collective agreement (i.e., whether the CFL or its member teams for whom Mr. Bruce played professional football, in carrying out the duties that Mr. Bruce alleges they owed to him, took steps to ensure his health and safety); and


  • Mr. Bruce was entitled to seek compensation by way of grievance and arbitration under the collective agreement for the matters raised in his claim, and had he done so, he could have obtained a meaningful remedy for those complaints.


In respect of the CFLAA, the Krembil Neuroscience Centre, Dr. Taintor, and Mr. Ezerins, the Court held that while they are “strangers” to the collective agreement, they are properly subject to the arbitral process, even if they are not agents to the agreement and even though they may owe independent duties to Mr. Bruce.


It is now a question of whether Mr. Bruce will choose to file a grievance, although he is out of time to do so under the collective agreement, or file an appeal. His counsel has publicly stated Mr. Bruce will be taking the latter avenue and appealing this decision.