Judge refuses to release names in Estabrooks lawsuit against Saint John
Lawyer representing alleged sex abuse victims will attempt to certify class action lawsuit at hearing in July
A judge has rejected a request by the City of Saint John that would have forced a Halifax law firm to turn over the names of potential participants in a class action lawsuit over abuse by former police officer Kenneth Estabrooks.
In his decision, Court of Queen's Bench Justice William Grant notes that at this stage — before the class action suit has been certified to go ahead — some potential participants may yet choose not to participate.
"I find that the effect of making the order sought by the defendants in this motion would be to require those class members to make a decision, which they are not required to make at this time," wrote Grant.
The city does not plan to appeal, said Michael Brenton, the lawyer hired by the city.
"I thought it was a fair decision," he said. "It doesn't impact on our defence at all."
John McKiggan, the lawyer behind the class action, is pleased with the decision.
"It was our view that requiring potential class members to provide their names to the defendants at this stage was premature, and Justice Grant agreed," he said.
As many as 263 youths may have been sexually abused by the late Estabrooks during a three-decade period dating back to the 1950s, a private investigator hired by the city found.
McKiggan contends it could be one of the worst cases of sexual abuse in Canadian history.
Both sides are scheduled to be in court in July for a week-long certification hearing, which will determine whether the case will be allowed to proceed as a class action.
Common issues must be clear
Two Canadian law professors say the judge will have to determine if there are enough similarities to make a class action the proper route.
"They're all different individual situations," said Catherine Piché, of the University of Montreal. "It just goes to say that the case has to be presented in a way that the common issues become clear."
Piché says the judge must also look out for the rights of the victims, who would become part of the case, even if they did not approach a lawyer.
Under class action rules, victims would be automatically in and would lose the right to launch their own lawsuits unless they physically opt out of the class action.
"There is a duty on the judge to be a sort of protector of the members of the class," said Piché. "So he or she has to anticipate what their interests are, what their needs are."
Jasminka Kalajdzic, of the University of Windsor's faculty of law, says there are many precedents for a case like the Estabrooks one to be allowed to proceed as a class action.
"It's not a rubber-stamp exercise by any means," said Kalajdzic. "But this type of case has a strong chance of getting certified."
Kalajdzic says a class action could provide justice to a large number of people, while saving both victims and the courts the cost of multiple suits.
"Given the financial and emotional barriers to individual lawsuits, it seems to me that class action may be the only viable option," said Kalajdzic.
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