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B.C. appeals court hears Arland Bruce concussion case

Montreal Alouettes strong back Arland Bruce is tackled during a CFL game in 2013. After his final season, Bruce soon became the face of concussions and football in Canada.

Frank Gunn/The Canadian Press

Arland Bruce's concussion case against the CFL and its teams was heard by the B.C. Court of Appeal in Vancouver on Friday. Bruce, one of the top receivers in CFL history, suffered a concussion in a game in 2012, playing for the B.C. Lions against the Saskatchewan Roughriders. He was out seven weeks and came back for a playoff game and thereafter played one more season for Montreal. In 2014, he filed suit against the league, alleging negligence. He suffered personality changes, paranoia, and delusions, among other issues, according to court documents.

The CFL argued the case was a health-and-safety issue and should be handled by an arbitrator, as outlined by the league's collective agreement.

In 2016, the CFL won at the B.C. Supreme Court. In the conclusion of the reasons for judgment, Chief Justice Christopher Hinkson said that the dispute "can only be resolved through the grievance-and-arbitration process" and said the court "lacks the jurisdiction." He struck Bruce's civil claim.

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On Friday, lawyers for the two sides were allotted several hours each to present their case to three justices at the Court of Appeal. Factums for both sides had been filed with the court last summer.

The justices reserved their judgment. Appeal judgments usually take several months and often longer to be issued.

Lawyers for Bruce argued that Hinkson had made errors. Reidar Mogerman, presenting the appeal, spoke of "uncharted territory" and "special circumstances."

Mogerman finished his remarks by saying the CFL's system of arbitration is "not up to the task" of handling a case such as Bruce's.

Stephen Shamie, lawyer for the CFL, said it is an "inescapable conclusion" that the case centres on health and safety – and thus the court decision last year was correct.

Shamie also said Bruce's counsel had been pursuing various legal avenues. "The appellant has changed its position three times since the commencement of this case," he told the three justices.

He added that the arbitration route was open to Bruce in 2014, when the court action was filed. The time limit for an arbitration claim has expired but Shamie, at the end of Friday's hearing, said the CFL would not stop Bruce from pursuing arbitration.

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Outside court, Bruce, now 39, said his health is better. He is not physically active and unable to work. He lives a quiet life, spending time with his four-year-old daughter and two-year-old son at home in a Vancouver suburb. He has regular headaches but not as bad as in the past.

"I'm improving every day," Bruce said. "I'm not an A-plus guy, like I used to be, but I'm improving."

Bruce believes he has chronic traumatic encephalopathy. CTE is the degenerative disease that has been found in the brains of numerous athletes, studied after the death of those athletes, who had suffered brain injuries in their playing days.

"I feel young and vibrant but the reality is I'm not," Bruce said.

He said the experiences of the past several years have changed his perspective on the sport he was devoted to growing up in the Kansas City area and played professionally in Canada. He said he would shield his son Arkyis from football. "I loved the game – don't get me wrong – but I wouldn't let my son play."

Robyn Wishart, Bruce's primary counsel, said outside the court that they will seek to be heard by the Supreme Court of Canada if they lose in B.C. at the Court of Appeal.

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Few applications to Canada's top court are granted, according to statistics from the Supreme Court of Canada. In the past five years, from the start of 2012 through the end of 2016, the court dismissed 2,226 applications and granted 263 – a success rate of 10.6 per cent for applicants. (As of Dec. 31, 2016, 84 applications were pending.)

"There has never been any case like this," Wishart said. "I suspect the Supreme Court of Canada will want to hear this."

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