Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220518 DOCKET: C69713

Huscroft, Thorburn and George JJ.A.

BETWEEN

Chris McCoy, Levonia Miller, Joseph McCoy and Avianna McCoy (a minor by her litigation guardian, Chris McCoy) Plaintiffs (Respondents)

and

Dr. Abram Choi and Merivale Medical Imaging Inc. Defendants (Appellant)

Counsel: Anne Tardif and Brieanne Brannagan, for the appellant, Abram Choi Davies Bagambiire and Robert Perron, for the respondents

Heard: May 2, 2022

On appeal from the order of Justice Harrison S. Arrell of the Superior Court of Justice, dated January 8, 2021.

Thorburn J.A.:

Overview and Relief Sought

1The respondent Chris McCoy brought an action for damages against the appellant, Dr. Abram Choi, for misdiagnosing his football injury. As a Canadian Football League (“CFL”) player for the Ottawa Redblacks, Mr. McCoy was a signatory to a 2014 Collective Agreement between the CFL, the Canadian Football League Players’ Association (the “Players’ Association”), and the Canadian Football League Player Relations Committee (the “Player Relations Committee”). The Collective Agreement requires any dispute between a player and his team or the CFL to be settled through grievance and arbitration.

2Dr. Choi brought a motion to dismiss Mr. McCoy’s claim pursuant to r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it fell within the scope of the Collective Agreement and could only be settled by an arbitrator.

3The motion judge dismissed Dr. Choi’s motion and held that the claim should be allowed to proceed in the Superior Court because, in his view, the essence of the claim was outside the scope of the Collective Agreement. Moreover, Mr. Choi was not an agent of the CFL nor was he a party to the 2014 Collective Agreement, and Mr. McCoy would be unable to obtain effective redress against him through the arbitration process.

4Dr. Choi appeals the motion judge’s order allowing the claim to proceed. He says the claim must be resolved by arbitration as this was a workplace injury sustained while Mr. McCoy was playing football for the Redblacks.

5Dr. Choi claims the motion judge erred by basing his view of the claim entirely on the wording in Mr. McCoy’s pleading that this was an action for “medical negligence by way of misdiagnosis of the injury sustained by the plaintiff,” instead of looking at the factual context that the injury was sustained while playing for the Redblacks. Second, he claims it is not material that he is not a party to the Collective Agreement. Third, even if Mr. McCoy were precluded from claiming certain types of costs under the arbitration provision, “it does not follow that he is thereby deprived of an ultimate remedy.”

Background Facts

6Before addressing these issues, I will briefly outline the factual background.

The Parties

7Chris McCoy signed a one-year contract to play professional football for the Ottawa Redblacks, a team in the CFL.

8The Players’ Association is the trade union acting as exclusive bargaining representative for all professional football players in the CFL. The Players’ Association negotiates and represents players in their disputes with their team and/or the CFL, including the enforcement of their rights under the Collective Agreement. The Player Relations Committee is also party to the Collective Agreement and is the collective bargaining representative of all of the teams in the CFL.

9The Merivale Medical Imaging Clinic (“Merivale”) is a diagnostic imaging centre. Merivale’s CEO swore an affidavit stating that in 2014, there was an arrangement between the Ottawa Redblacks and Merivale to provide “preferential treatment” for Redblacks players. Preferential treatment included completing requisitions on a priority basis, sending radiology reports directly to the Redblack’s treatment team instead of the player, and billing the Redblacks directly for services rendered.

10Dr. Choi was a radiologist working on a locum basis at the Merivale clinic. He worked as an independent contractor.

Mr. McCoy’s Injury and Treatment

11On July 26, 2014, Mr. McCoy sustained an injury to his wrist while playing during a regular season football game, and was referred to the Merivale clinic for an X-ray of his left arm and wrist.

12On July 28, 2014, Dr. Choi took an X-ray and after examining it, diagnosed the injury as “a non-displaced fracture through the base of the ulnar styloid.” Dr. Choi had no further involvement with Mr. McCoy’s care. Mr. McCoy’s wrist was placed in a cast.

13Mr. McCoy continued to experience pain once the cast was taken off and visited a chiropractor, who requested follow-up X-rays from Merivale. On or about September 25, 2014, Mr. McCoy was released from the Redblacks. Mr. McCoy claims this was because “they thought I was faking the injury.” The same day, Mr. McCoy received a second report from Merivale indicating that he had suffered an “avulsion fracture ulnar styloid” and a “perilunate dislocation.”

14Mr. McCoy claims that, as a result of Dr. Choi’s initial misdiagnosis, his wrist injury was treated as a simple fracture on which a cast was placed when, in fact, it was a more serious perilunate dislocation that required immediate surgery. Mr. McCoy claims that as a result of the misdiagnosis and mistreatment, he has been left with a permanent wrist injury and his football career has ended.

Mr. McCoy’s Rights and Obligations under the Collective Agreement

15The Collective Agreement that Mr. McCoy signed contains an arbitration clause that requires disputes between a player and a team about the interpretation, application, operation of the Agreement to be finally settled through arbitration. Arbitration awards are final and binding on the parties.

16Mr. McCoy also signed a CFL Standard Player Contract (the “Standard Contract”), which formed appendix AA to the Collective Agreement.

17Section 20 of the Standard Contract provides that if a player is injured in the performance of his duties, the Club must pay the player’s medical expenses “necessarily incurred or arising from the injury provided that the hospital and doctors are selected by the [team]… until such time as the [team’s] doctor… certifies that the player has sufficiently recovered from the injury to play football, or until one year from the date that the injury occurred, whichever event shall first occur…”

18Section 21 of the Standard Contract provides that if a player is injured while playing for the team and the injury renders him unfit to play skilled football, the team must pay him 100% of his salary and benefits until the first day of training camp the following season. In the event of a dispute about the player’s ability to play professional football, s. 21 also provides for a report by a neutral physician (a “Neutral Physician Report”) to be prepared, which opinion “shall be conclusive and binding upon the Player and the [team]”.

Mr. McCoy’s Dealings with the Redblacks after his Injury

19Mr. McCoy initiated three proceedings. First, he and the Players’ Association challenged his release from the Redblacks and requested a Neutral Physician Report pursuant to s. 21 of the Standard Contract. Mr. McCoy’s challenge resulted in the Redblacks paying out his 2014 salary and arranging for his medical treatment.

20On February 5, 2015, Mr. McCoy filed a notice to arbitrate, seeking damages in the amount of $2,000,000 from the Ottawa Redblacks for the team’s poor medical treatment after his injury and for labelling him a “faker” and “malingerer.” He has not yet proceeded to arbitration. Mr. McCoy claims the arbitration will address expenses for treatment for one year; negligence by the team, its servants and agents in treating his injury; and salary and benefits payable pursuant to s. 21 of the Collective Agreement.

21Finally, in 2016, Mr. McCoy filed a statement of claim in this negligence action against Dr. Choi and Merivale. He claimed $5,000,000 in damages for loss of income, loss of competitive advantage, and health care costs resulting from the misdiagnosis and wrongful treatment of his injury. Dr. Choi brought a motion to dismiss the claim.

Analysis of the Motion Judge’s Decision

The Motion Judge’s Decision

22The motion judge held that, “this is not a dispute which, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement”. He concluded that the tort claim should be allowed to proceed in the Superior Court. His reasons are as follows:

i. The essential character of the dispute was of medical negligence by an outside doctor, which does not fall within the ambit of the Collective Agreement: Dr. Choi was not an agent of the CFL, Merivale was not controlled by the CFL or Redblacks, and there was no exclusive arrangement for the provision of healthcare services with any party to the Collective Agreement; ii. Claims involving third parties are not provided for under the Collective Agreement; and iii. If the matter were to proceed by way of arbitration, there were costs that would not be recoverable.

Analysis of the Issues

23The issues on appeal are:

i. What is the “essential character” of the dispute? ii. Does the dispute fall outside the ambit of the Collective Agreement because Dr. Choi is not a party to the Agreement? and iii. Are there costs that Mr. McCoy would not be able to recover if the matter were to proceed by arbitration such that he would be denied effective redress?

24An arbitrator must adjudicate any dispute arising, expressly or implicitly, from a collective agreement which contains an exclusive arbitration clause such as the one at issue in this appeal: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at para. 54. In such cases, a court’s jurisdiction is limited to granting remedies that lie outside the authority of the arbitrator: Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585, at para. 23.

25A dispute arises from a collective agreement when its “essential character” concerns a subject matter within the ambit of the collective agreement: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, at para. 25.

26The inquiry into “essential character” is factual. It is directed at whether the dispute is factually related to the rights and obligations in the collective agreement, not at the legal character the dispute has taken; for instance, as an action in tort: Weber, at para. 43; Horrocks, at para. 20.

27The question for this court is whether the dispute arises from the Collective Agreement. In my view, the dispute in this appeal is not factually related to the rights and obligations in the collective agreement. It does not arise from the Collective Agreement and therefore it is not within the exclusive jurisdiction of an arbitrator.

28In 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.

29Dr. Choi was not a servant or agent of the Redblacks team. He was an independent contractor. Nor is there any evidence that he was an agent for the Redblacks. The clinic at which he was working, Merivale, was not owned, controlled or directed by the Redblacks team, and neither Dr. Choi nor Merivale was party to, or agent of a party to, the Collective Agreement.

30Section 20 of the Standard Contract gave Mr. McCoy the right to demand that the Redblacks pay his medical expenses for up to a year after the injury, but after that point relieved the Redblacks of liability in connection with the injury. He retained a right to make a claim for negligence by the team’s servants or agents.

31As such, this was not, as the appellant claims, a question of the responsibility of “a team’s agent in treating player injuries” and this action for negligence is not related to Mr. McCoy’s s. 20 right to make a claim for negligence by the team’s servants or agents. The dispute over Dr. Choi’s misdiagnosis is not, in essence, factually related to any right or obligation Mr. McCoy possesses under the Collective Agreement.

32While Mr. McCoy did file a grievance pursuant to the Collective Agreement, this cannot confer jurisdiction where none exists. The Collective Agreement covers those issues best suited to labour arbitration.

33Moreover, neither Dr. Choi nor Merivale are bound by the rights and obligations set out in the Collective Agreement. A dispute concerning Dr. Choi’s alleged negligence falls outside the ambit of the Collective Agreement and contemplation of the parties to the Agreement. These conclusions are sufficient to dispose of the appeal.

34In any event, the Collective Agreement does not offer effective redress against an outside party. As the motion judge noted:

The record before me would indicate that under the CPA Article 4.09(C) the costs of travel for an attendance by an expert as a witness is recoverable as is a reasonable fee for that attendance. There is no provision for any fee for an expert to prepare or write any reports or indeed any other disbursements incurred by the expert. It is highly unlikely that any expert would agree to such terms.

Article 4.09 would also seem to allow only disbursements to counsel for travel and accommodation and nothing else. That would not be proper redress for a plaintiff in a medical malpractice case where numerous reasonable disbursements can occur.

Counsel fees under Article 4.09(D) allows for only one set of fees for one counsel, something that is very rare in a medical malpractice case and which would not provide proper redress to a plaintiff in such a situation.

Finally, Article 4.02 makes it clear that if the plaintiff wishes to arbitrate this dispute, which if this court declines jurisdiction would be his only avenue of redress, then he must pay the costs of the arbitration. Such costs are commonly well in excess of the cost of commencing an action in Superior Court and would be a burden on a plaintiff that may well make arbitration unaffordable, leaving that person with no reasonable means of redress.

35There would therefore be deprivation of a remedy if this dispute, that is not covered by the Collective Agreement, were to proceed by arbitration.

36For these reasons, I see no error with the motion judge’s conclusion that “the dispute of medical negligence in my view does not fall within the ambit of the Collective Agreement which deals with claims arising from employment with the team and not negligence of an outside party.”

37The appeal is dismissed. Costs of this appeal to the respondent, fixed in the amount of $16,000 all-inclusive.