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Football CFL faces challenge at Supreme Court of Canada on concussions

Arland Bruce in a CFL football game in 2012.

Jeff McIntosh/The Canadian Press

The CFL faces a potential case at the Supreme Court of Canada over the issue of concussions after lawyers representing retired star receiver Arland Bruce sought leave to appeal to the country's top court.

"Canada is at a judicial crossroads with respect to addressing risks associated with contact sports and concussion injuries," Bruce's lawyers state in an application for leave to appeal, filed late last Friday.

This is the latest step in a legal saga that began more than three years ago, when Bruce sued the CFL, its commissioner and its teams for negligence. Bruce alleged that a concussion and a too-early return to play led to an array of health problems, including, according to court documents, personality changes, delusions and paranoia.

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Related: Group takes aim at concussion risk with national guidelines

In court, however, the CFL won two victories in cases decided on the issue of legal jurisdiction. The CFL successfully argued, first at the B.C. Supreme Court and then at the B.C. Court of Appeal, that concussions are a health-and-safety question that should be decided in arbitration under the league's collective bargaining agreement, rather than in court.

The Bruce case inches forward as work around brain injuries in sports accelerates. A major study in July revealed that about 90 per cent of former football players whose brains were submitted for examination showed signs of chronic traumatic encephalopathy – CTE – the disease that has ravaged some retired players. Also in July, national concussion guidelines were issued in Canada, a push led in part by Parachute Canada, a safety-advocacy group headed by former ski racer Steve Podborski. In the United States, in June, the first claims in the $1-billion (U.S.) NFL concussion settlement were approved, four years after the deal was made.

The CFL has 30 days to respond to Bruce's leave to appeal, with a deadline of Sept. 11. On Tuesday, the league had no comment on the case.

A decision from the Supreme Court of Canada on whether to hear the appeal will likely be made by the end of the year, based on the court's typical timelines. If the leave to appeal is granted, a hearing would follow later in 2018, with a ruling in the first half of 2019, based on the court's average timelines.

In their application, Bruce's lawyers try to draw the interest of the Supreme Court on the issue of concussions, and also the legal issue of jurisdiction.

The lawyers – Robyn Wishart of Wishart Brain and Spine Law, Reidar Mogerman of Camp Fiorante Matthews Mogerman, and Jonathan Foreman of Harrison Pensa LLP – argue that arbitration is inadequate to handle the question of concussions. Among arbitration's deficiencies, they contend, is the absence of a provision to file expert medical evidence.

The B.C. Court of Appeal said in its May ruling in favour of the CFL that Bruce, "could have obtained an effective remedy" through arbitration.

In the conclusion of their application to the Supreme Court, Bruce's lawyers write: "This Honourable Court can now decide whether the complex medical issues of repetitive brain trauma are best addressed in the public forum of a court or the private back rooms of arbitration."

The legal issue of jurisdiction, which has dominated the Bruce case to this point, stretches back to the Weber precedent, a Supreme Court of Canada decision in 1995 in a case between a worker on long-term disability and Ontario Hydro, the electrical utility. Justice Beverley McLachlin wrote the majority decision, five years before she became chief justice. (Chief Justice McLachlin retires this December.)

Since Weber, judges have showed a "single-minded drive" to keep cases between unionized workers and employers out of the courts, according to Brian Etherington, a University of Windsor law professor, in a 2015 paper.

Bruce's lawyers argue that it is time to reconsider Weber and state their case is a "unique opportunity" to do so.

"Labour relations are not static," the lawyers write. "Should the law be static? By granting leave, this Honourable Court will have a key opportunity to re-evaluate Weber in light of the ever-evolving employment– and labour-relations landscape."

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