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Football CFL fighting concussion lawsuit on ‘technicality,’ lawyer contends

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

In the second quarter of a B.C.-Saskatchewan game in Regina in late September of 2012, the Lions' Arland Bruce leaped to catch a pass and was upended by a defender. Bruce crashed down. His head hit the turf, and he was knocked unconscious.

A concussion sidelined him for seven weeks. Bruce returned for a playoff game, which the Lions lost, but was released by the club two months later. As one of the top receivers in CFL history – he won Grey Cups with both the Lions and Toronto Argonauts – the 35-year-old got work in Montreal, where he played one final season for the Alouettes.

His illustrious football career over, Bruce soon became the face of concussions and football in Canada. He began to suffer escalating headaches, memory loss, confusion, personality changes, paranoia and delusions, according to interviews and court documents in a suit against the Canadian Football League and its nine clubs that was filed in British Columbia in July 2014.

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It was the first concussion lawsuit against the CFL and was followed in May of 2015 when his lawyer Robyn Wishart and several other former players filed a separate $200-million suit that sought class-action status in Ontario.

The Canadian cases followed a similar legal battle in the United States, where thousands of former NFL players took on the league in court over concussions and their aftermath. A settlement, first announced in 2013, is currently estimated at $1-billion (U.S.).

The Bruce-CFL case, however, has unfolded far differently than the NFL's. And, so far, it has nothing to do with Bruce's allegations that the Canadian league was negligent. The CFL is winning in court using a legal strategy that the NFL attempted and gave up on, one that argues the issue of legal jurisdiction.

What it means is the CFL may avoid the NFL outcome. How the Bruce case plays out will be key. The CFL has already won one important judgment on the jurisdictional question in B.C. That decision is being appealed and initial arguments are set to be filed by June 21. But if the CFL wins against Bruce, it could undermine the nascent class-action case, for which more than 200 former players have signed on.

The heart of Bruce's claim is that he should have been warned about long-term health risks.

"I was never advised by the CFL, the B.C. Lions or the Montreal Alouettes as a 13-year veteran of the league that I was at risk for succumbing to an increased risk of neurological damage and mental-health issues as a result of repetitive head trauma," Bruce said in an affidavit.

Legal experts say Bruce's lawyer has a difficult challenge in trying to overturn the judgment the CFL won in March at the Supreme Court of B.C.

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Chief Justice Christopher Hinkson ruled that the court did not have jurisdiction for the case, that it could only be resolved through the grievance and arbitration process under the league's collective agreement with the players' union.

In Canada, the principle of arbitration instead of the courts, in disputes between employers and unionized workers, was solidified in a 1995 Supreme Court of Canada judgment known as Weber v. Ontario Hydro. It was a case between a worker on long-term disability and the electricity utility.

Courts thereafter have almost always hewed to the Weber precedent.

Judges have displayed "a single-minded drive" to keep fights between employers and unionized workers out of the courts, according to Brian Etherington, a University of Windsor law professor, in a forthcoming paper entitled Weber and Almost Everything After.

Brian Langille, a law professor at the University of Toronto, sees it likewise: "The law tells you: don't to go to court, go to an arbitrator."

The B.C. judgment cited Weber prominently. The chief justice specifically said he would not consider "the merits" of Bruce's claims about the CFL and repetitive head injuries.

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"I decline to engage in that sort of analysis," Hinkson wrote in the judgment.

Before Bruce sued the CFL, the NFL undertook a legal defence based on a jurisdictional argument. In the United States, it is known as pre-emption, federal labour law over state tort law.

The idea for both leagues was the same: the courts were not the right venue for concussion claims.

But the NFL, looking at lawsuits from thousands of players, didn't push the jurisdictional argument to a decision.

It chose instead to settle rather than risk losing in court.

The NHL, facing a concussion case brought in Minnesota by former players, tried the same jurisdictional legal tack as the NFL and CFL.

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A ruling landed in mid-May, when a Minnesota judge denied the NHL's motion to dismiss the concussion case. The judge wrote that it must proceed for now – but added the NHL could still eventually win on jurisdictional grounds.

The CFL is the first pro sports league to win a jurisdiction decision on a concussion claim from a former player, said Stephen Shamie, the CFL's legal counsel on the case and managing partner at Hicks Morley in Toronto.

"It is very significant for us," Shamie said. "We were hoping that that would end these matters – but it obviously hasn't."

Bruce didn't consider the grievance-arbitration avenue because Wishart, his lawyer, felt it was an "impossible forum" for his claim. Wishart said arbitration wouldn't provide enough time to properly hear Bruce's case or the ability to seek out evidence.

The CFL is "arguing this case on a technicality," said Wishart, who works with KazLaw Injury Lawyers in Vancouver.

For Wishart, the case has become a crusade.

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Beyond the courts, she wants to help former players who are struggling.

Her client is one. Bruce lives in the Vancouver suburbs, and has a fiancée and two children. He does not work, and he collects disability benefits from the Canada Pension Plan. Through Wishart, he declined an interview. Bruce's uncle and business manager, Dennis Cameron, has helped Bruce on the case and spoke on his behalf: "He's an injured man. He's a disabled person."

Bruce, in his affidavit, said the effects of the concussion ended his career, keeping him off the field in 2014, a year in which his health worsened.

On Jan. 19, 2015, he was committed for one month to the Burnaby Hospital psychiatric ward "for treatment for paranoia and delusions," the affidavit said.

Dante Marsh, a retired defensive back who played 11 seasons for the Lions and was a teammate of Bruce's in 2011 and 2012, remembered Bruce having changed after the concussion. "He just wasn't himself," Marsh said in a telephone interview.

Marsh, 37, also had several concussions in football. He feels healthy but worries about occasional blanks in his memory. "I don't want to scare myself," he said. "But is it an effect of playing football?"

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Marsh has thought about joining the class action against the CFL and believes the league owes its former players.

"The NFL had to do a settlement," Marsh said. "I don't see why the CFL would be exempt."

But, in court, the CFL pushes toward a legal victory.

Wishart, preparing her arguments for B.C.'s Court of Appeal, the province's top court, plans to go after the nature of the CFL's labour agreement. She argues it is distinct compared with other similar agreements, and she believes this means the courts do have jurisdiction in the Bruce case.

"I'm sure," Wishart said, "that no matter what, it's going to end up in the Supreme Court."

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