Collective agreements commonly require that disputes arising from the interpretation, application, administration or alleged violation of the agreement to be settled through arbitration. In some cases it may be obvious whether a particular dispute falls within the scope of the collective agreement and therefore needs to be determined by arbitration, but in other cases it might not be.

A recent decision from the Court of Appeal for Ontario in McCoy v Choi involved a Canadian Football League (“CFL”) player who was a signatory to a collective agreement. The plaintiff brought a medical malpractice action in court against a doctor following a football injury. The doctor sought to have the claim dismissed arguing that it fell within the scope of the agreement and therefore needed to be settled by an arbitrator rather than the court. 

There is a collective agreement between the CFL and players’ union

The CFL has a collective agreement with the union representing players, the CFL Players’ Association, and the CFL Player Relations Committee, which represents the CFL teams. The plaintiff, Mr. McCoy, signed a CFL Standard Player Contract which was an appendix to the agreement. It was a one-year contract with the Ottawa Redblacks. 

The collective agreement required that any disputes arising between a player and team about the interpretation, application or operation of the agreement must be settled through binding arbitration. 

The plaintiff’s standard contract stated that in the event of an injury the team was required to pay for medical expenses incurred by the hospital and doctors selected by the team, until the team’s doctor certified that the player had sufficiently recovered to return to play, or for the duration of one year from the date of the injury’s occurrence. The standard contract also required the team to pay the player’s salary until the first day of next season’s training camp if the injury left him unfit to play. If there was a dispute about fitness to play, the contract provided for a report by a neutral doctor.

Player was injured, then diagnosed and treated

The plaintiff suffered a wrist injury during a game and was sent to a diagnostic imaging centre that had an arrangement with the team. He was assessed by the defendant, a radiologist, who performed an x-ray and diagnosed the injury. The plaintiff was subsequently placed in a cast.

After the cast was removed, the plaintiff continued to experience pain and attended a subsequent x-ray. The plaintiff was released by his team and claimed that this was because they thought he was “faking the injury.” He later found out that he had a complex fracture that required surgery.

Player brought proceedings against the team and the doctor

The plaintiff claimed that the misdiagnosis caused a premature end to his football career and resulted in a permanent wrist injury.

Firstly, the union and the plaintiff challenged his release by the team and requested a neutral doctor report. This resulted in the team paying out his yearly salary and paying for his medical treatment. Next, the plaintiff filed a notice to arbitrate, seeking damages from the team regarding the medical treatment he received. Finally, he started a negligence action in court against the radiologist, claiming damages for loss of income and health care costs. 

The doctor sought to dismiss the claim, arguing that it fell within the scope of the collective agreement and needed to be arbitrated.

What was the “essential character” of the dispute relating to the doctor?

The Court of Appeal explained that an arbitrator needs to adjudicate any dispute arising from a collective agreement with an exclusive arbitration clause and:

“A dispute arises from a collective agreement when its “essential character” concerns a subject matter within the ambit of the collective agreement.”

This case involved a factual question to determine whether the dispute related to the rights and obligations in the collective agreement.

Dispute was about injury misdiagnosis by an outside physician

The Court thought that the dispute with the doctor was not factually related to the rights and obligations in the collective agreement. It said:

“In essence, this is a dispute over a misdiagnosis of an injury by an outside physician who was not affiliated with the Redblacks, which injury was treated in accordance with the misdiagnosis, which allegedly caused damages.”

The doctor was not an agent of the team. While the contract required the team to pay medical expenses for one year, the plaintiff retained the right to claim negligence against others. This dispute was unrelated to his contractual right.

Doctor not bound by the collective agreement

The Court of Appeal noted that the doctor was not a party to the collective agreement and, therefore, was not bound by its rights and obligations. Filing a grievance under the collective agreement could not confer jurisdiction to determine a dispute relating to the doctor’s alleged negligence.

Collective agreement does not offer redress against outside parties

The Court also explained that there would be a deprivation of a remedy if the dispute proceeded to arbitration. Under the collective agreement, the plaintiff would be required to pay the costs of the arbitration and for other things, including the preparation of expert reports. These could make the arbitration unaffordable, leaving no means of redress.

For all of these reasons, the Court of Appeal decided that the medical negligence dispute did not fall within the scope of the collective agreement, allowing it to proceed in the courts. 

Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Advice on Disputes Relating to Collective Agreements

The knowledgeable labour lawyers at Grosman Gale Fletcher Hopkins LLP have extensive experience guiding employers on labour relations issues. We handle the full range of labour disputes and all types of grievances and arbitrations, including discipline grievances. We also represent our employer clients before proceedings at the labour relations boards, such as the Ontario Labour Relations Board. For help with labour matters, contact the team at Grosman Gale Fletcher Hopkins LLP online or at 416.364.9599 to schedule a consultation.