New Brunswick

City of Saint John vicariously liable in sexual predator class action, judge rules

The City of Saint John is vicariously liable for the harm a former police officer caused when he sexually assaulted multiple children decades ago, while a city employee, a judge has ruled.

Not liable for harm by Kenneth Estabrooks as a police officer, but liable after transfer to works department

An investigation launched by the City of Saint John in 2012 revealed Kenneth Estabrooks, who died in 2005, may have abused hundreds of children over a three-decade period. (CBC)

The City of Saint John is vicariously liable for the harm a former police officer caused when he sexually assaulted multiple children decades ago while he was a city employee, a judge has ruled.

Vicariously liable is when one party is deemed liable for the actions or inaction of another party, based on the nature of their relationship.

The city is not, however, vicariously liable in the class-action lawsuit for the "physical, mental and/or sexual harm perpetrated" by Kenneth Estabrooks between 1953 and 1975, when he was a police officer, Court of King's Bench Justice William Grant found Thursday.

Nor did the city owe a duty of care to the class members to protect them from the harm perpetrated by Estabrooks between 1975 and 1983 by blocking his transfer to its works department, Grant wrote in his 44-page decision.

Halifax lawyer John McKiggan, who is representing the plaintiffs, said it's "probably the most disappointing loss" he has had in 32 years, and he plans to appeal.

"The decision, frankly, surprised me," he said.

Plaintiffs' lawyer John McKiggan said he 'had no doubt' the city would be found liable for the abuse during the time Estabrooks was a city employee, but notes that was only a few years, compared to the decades he was a police officer. (Graham Thompson/CBC)

"The fact is that the city employed Kenneth Estabrooks. The city provided him with his police uniform. The city provided him with his gun. The city owned the car that he drove when he picked up these children and sexually assaulted them.

"The law, I believe, has evolved to the point where it must recognize that when an institution, an organization, or a city provides someone with a cloak of authority — like a police officer, there are certain obligations that flow from that.

"And to suggest that during the period that Kenneth Estabrooks was a police officer, no one can be held responsible for the sexual abuse of children that he perpetrated, to me, is shocking."

Lead plaintiff 'disappointed'

The representative plaintiff, Bobby Hayes, 62, is "disappointed," said McKiggan, and all of the class members "who have been waiting for decades for some measure of justice are going to be upset."

They sued the city for vicarious liability for the harm Estabrooks inflicted from 1953, when he became a police officer, to 1983, when he retired from the city works department.

They also alleged negligence for the years Estabrooks was employed at the works department, where he was transferred in 1975 after admitting to having sexual relations with two teenage boys while an officer.

City officials could not immediately be reached for comment Thursday. Nor could Saint John Police Force officials.

Estabrooks died in 2005. The former sergeant was found guilty in 1999 of indecent assault against four children, in cases dating back to the 1950s, and sentenced to six years in prison.

The class-action, which began in 2013, heard testimony this summer from five men, aged 58 to 66, who said Estabrooks preyed upon them when they were boys.

The court received evidence from a total of seven potential members of the class, "the size of which is yet to be determined," said Grant. 

Hayes, the only one who can be named, testified 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.

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

Grant concluded that the city's relationship to Estabrooks during his time as a police officer was "largely limited to administrative matters," such as payroll and equipment, which were unrelated to his duties, "in the course of which he committed the torts in question."

The source of his power and authority was not the City of Saint John; rather it was the law," he wrote.

In a sworn affidavit, Donald French, who was the city's director of personnel and labour relations and signed Estabrooks' transfer papers, said he was not informed of the reasons for the transfer to the works department.

He was told by then-police chief Eric Ferguson that it was "a police matter," he said.

"I was not aware, or informed by any person, of any sexual assaults or other criminal activity having been committed by Kenneth Estabrooks during my employment with the City."

During a 1998 investigation into the legality of the transfer, Staff Sgt. Tim Kelly of the Fredericton Police Force concluded the chief was aware at the time of the transfer that "Estabrooks' sexual improprieties went well beyond the two complainants," the judge wrote in his decision.

The investigating officer further stated, "It would appear that Ferguson was less than forthright with the city manager in his handling of this case." He concluded then-city manger Nicholas Barfoot "had no knowledge of the sexual improprieties surrounding this case."

McKiggan said an appeal will further delay resolution of the matter for an unknown period of time, but the plaintiffs have "no choice."

Grant reserved decision on costs until he hears submissions from the parties.