Saint John loses bid to block class action over alleged abuse by Kenneth Estabrooks

The City of Saint John has lost another attempt 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.

Court of Appeal allows certification to stand on 3 of 4 issues involving former police officer

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

The City of Saint John has lost another attempt 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.

In a decision released Thursday, the New Brunswick Court of Appeal has allowed certification of the class action to stand on three of the four issues previously approved by the Court of Queen's Bench.

The class-action will proceed on the questions of whether the city owed Estabrooks's victims a duty of care, whether the city is vicariously liable for Estabrooks's abuse, and whether the city is responsible for punitive damages.

"This is a huge win for the class members," said Halifax-based lawyer John McKiggan, counsel for Bobby Hayes, who is the representative plaintiff in the class action.

"As I explained to Bobby Hayes to put it in perspective, if this were a baseball game, Bobby and the class members would be batting .750," he said.

City spokesperson Lisa Caissie declined to comment.

"We will not be commenting on matters respecting ongoing litigation," she said in an email.

Bobby Hayes, who alleges he was abused by Kenneth Estabrooks as a boy and young man, is the representative plaintiff in the class action. (CBC)

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.

Years later, more accusations led to Estabrooks being convicted in 1999 on four charges of indecent assault involving three boys and a girl during the years he worked for the city. He was sentenced to six years in prison and died in 2005.

In September 2013, a private investigator hired by the city reported that as many as 263 youths may have been sexually abused by Estabrooks over three decades.

Hayes, one of the alleged victims, launched a lawsuit against the city in 2013 and became the representative plaintiff of the class action.

Appeal allowed on fiduciary duty

Court of Queen's Bench Justice William Grant certified the action in February 2017 on four legal issues: duty of care, vicarious liability, punitive damages and fiduciary duty.

The city sought leave to appeal the class action certification, arguing Grant made a reversible error of law.

The Court of Appeal allowed the appeal on the breach of fiduciary duty, so that claim will not proceed to certification, but the other three stand.

​"Reasons for decision will follow shortly," says the three-page ruling by justices Margaret Larlee, Marc Richard, and Kathleen Quigg. 

Because of the divided success, no costs have been awarded.

John McKiggan, who is representing Bobby Hayes, is calling on the city to 'do the right thing and negotiate a way to validate and settle these claims.' (Brian Chisholm/CBC)

The city now has three options, according to McKiggan: seek leave to appeal to the Supreme Court of Canada on the remaining three issues, defend against the claims at trial or "sit down and negotiate a resolution of the claims.

"Obviously, we believe the city should do the right thing and negotiate a way to validate and settle these claims," he said.

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

In a sworn affidavit filed with the court, Hayes alleges he was first sexually assaulted by Estabrooks in 1970 as a 10-year-old and many other times over the next three or four years.

"During the same time frame I witnessed Estabrooks raping seven or eight other children on Tin Can Beach," Hayes said in his affidavit.

Hayes also alleges he was sexually assaulted again by Estabrooks as a young man, when they were both employed by the city works department, and supervisors simply advised him to "move faster" to avoid being assaulted.