Part of the ‘bargain’ of collective bargaining is that bargaining unit members surrender many of their common law employment rights if they aren’t expressly provided in the collective agreement. This was the issue that recently came before the Supreme Court of British Columbia in Bruce v Cohon when former CFL wide receiver Arland Bruce brought a civil claim against the CFL, its Commissioner and a number of CFL teams alleging that he suffered concussions while playing for the BC Lions and that he was improperly permitted to continue playing.  The Defendants argued that the Court lacked jurisdiction because arbitration was mandatory under the CFL’s collective agreement.

Chief Justice Hinkson cited appellate jurisprudence from across Canada which established the principle of the union’s exclusive representation.  He held that the Supreme Court of Canada adopted the exclusive jurisdiction approach, which requires unionized employees to proceed by arbitration in any disputes arising from the collective agreement, and ousts the jurisdiction of the court in such disputes.  These cases established three factors to determine whether the courts have jurisdiction to entertain a dispute between an employee and his or her employer in the face of a collective agreement:

  1. a) the “ambit” of that collective agreement;
  2. b) the essential character of the dispute between the parties; and
  3. c) whether the collective agreement provides the employee or the employer with an effective remedy.

Chief Justice Hinkson held that the ambit of the collective agreement covered compensation, workplace safety and its grievance procedure stated that any alleged dispute between a player and his team should be resolved through arbitration.  The essential nature of the dispute related to player health and safety which was within the scope of the collective agreement.  Finally, there was an effective remedy under the collective agreement even though it would be necessary to obtain an arbitral order granting an extension of the period in which the grievance may be brought.  For these reasons, the civil litigation could not proceed.

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