Saint John tries again to block lawsuit by abuse victims of former police officer

The City of Saint John has made another attempt to block a class action lawsuit by dozens of adults who say they were sexually abused as minors by the late police officer Kenneth Estabrooks.

City appeals certification of class action suit in sex abuse case that could involve hundreds of victims

An investigation launched by the City of Saint John in 2012 revealed Kenneth Estabrooks may have abused hundreds of children over three decades. (CBC)

The City of Saint John made another attempt Thursday to block a class action lawsuit on behalf of adults who say they were sexually abused as minors by the late police officer Kenneth Estabrooks.

At a Court of Appeal hearing in Fredericton, the city sought leave to appeal the class action certification allowed by Justice William Grant in his Feb. 9 decision.

Appearing before Judge Marc Richard, the city's lawyers argued that Grant made a reversible error of law.

Estabrooks was a police officer between 1953 and 1975, when his law enforcement career was terminated abruptly following admissions to superiors he had sexually abused at least two boys. 

Rather than being charged with a crime, Estabrooks was transferred to the city works department, where he retired in 1983. He died in 2005.

In the city's written brief to the appeal court, Michael Denton and Donald Keenan argued that Estabrooks was not an employee or servant of the city when he worked in the police force.

While the city did create the police force, they argued, it did not create liability for the conduct of its officers.

"Before the passing of the Police Act in 1977, municipalities in this province could not be held vicariously liable for the acts or omissions of their police officers," the brief said.

City denies liability

As for the city's potential liability when Estabrooks worked in the maintenance garage after the police department, the brief referred to a Supreme Court of Canada decision involving a residential school in British Columbia.

In that case, the court ruled that the Catholic Church did not have to pay damages to a man who was assaulted by a baker, boat driver and odd-job man because he was not made directly responsible for the care of the youth.

"The employment of [the man] as a baker, boat driver and odd-job man did not put him in a position of power, trust or intimacy with respect to the children," quoted the brief. "His job did not require regular or private contact with the children." 

Similarly, they argued, Estabrooks's employment as a labourer did not afford him opportunity to interact with the general public, or more particularly, minors. 

John McKiggan, the lawyer representing plaintiff Bobby Hayes, argued that a class action certification is a procedural matter, not an evaluation of the merits of the case. (Brian Chisholm/CBC)

They said the city in its role as a municipal government did not have a fiduciary duty — a duty of good faith and trust — to its residents when discharging its public authority as created by statute.

Lawyer John McKiggan, counsel for Bobby Hayes, who is the representative plaintiff in the class action suit, said the certification was correct.

McKiggan defended Grant's consideration of precedent case law and also argued that a class action certification is a procedural matter, not an evaluation of the merits of the case.

The certification paved the way for Robert Hayes to be the representative appellant in a case that claims the city was negligent and breached a fiduciary duty that it owed to the class members, who suffered as a result.

263 possible assaults

​As of April, the city had spent $446,000 on a private investigation firm to search out and interview potential victims from that time.

In September 2013, private investigator Dave Perry, co-chief executive officer of Investigative Solutions Network, reported that as many as 263 youths may have been sexually abused by Estabrooks over three decades.

McKiggan had previously told CBC News that if the city is found liable, the municipality may not have enough insurance to cover the settlements.

McKiggan said the amount of insurance coverage available depends on the year in which a victim was abused.

Some years, the city took out what are known as "diminishing reserve" policies that set a fixed limit on the amount that could be paid out in total claims.

"If the insurance policy limits in this case are not sufficient to meet the claims, the city has some pretty significant potential exposure," McKiggan said in an 2016 interview.

Justice Richard reserved decision until later. He did not set a date.

Following the hearing, McKiggan said both sides made capable arguments in court.

"Of course, we would prefer [Judge Richard] to deny leave to the city so that this doesn't take any longer than it needs to," he said.

"The plaintiffs have waited a very long time for resolution of these claims, and we'd like to move forward as quickly as we can."