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
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:
a) the "ambit" of that collective agreement;
b) the essential character of the dispute between the parties;
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.
Written with the assistance of Danny Urquhart, articling
About Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global law firm. We provide the
world's pre-eminent corporations and financial institutions
with a full business law service. We have more than 3800 lawyers
and other legal staff based in more than 50 cities across Europe,
the United States, Canada, Latin America, Asia, Australia, Africa,
the Middle East and Central Asia.
Recognized for our industry focus, we are strong across all the
key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).