Supreme Court OKs $26M class-action lawsuit against Saint John over alleged sex abuse
City's leave to appeal class action by alleged victims of former officer Kenneth Estabrooks dismissed
The City of Saint John has lost its final attempt to block an estimated $26-million class-action lawsuit over alleged sexual abuse of minors by former police officer Kenneth Estabrooks.
The Supreme Court of Canada dismissed the city's application for leave to appeal with costs on Thursday.
As is customary, the Supreme Court did not provide reasons for its decision, which upholds the New Brunswick Court of Appeal's 2018 dismissal of the city's challenge of the class action being certified by the province's Court of Queen's Bench.
The ruling from the country's highest court means the class action, filed more than five years ago by representative plaintiff Robert (Bobby) Hayes, can finally proceed.
"This is tremendous news," said Hayes's Halifax-based lawyer, John McKiggan.
"Bobby's a fighter, he's not going to give up and this decision today has just confirmed that, you know, we're taking the right approach."
City officials declined to comment, saying the matter remains before the courts.
The lawsuit — open to anyone allegedly victimized by the late Estabrooks between 1953 and 1983 — alleges the city owed his victims a duty of care, is vicariously liable for his abuse and is responsible for punitive damages.
In 2013, a private investigator hired by the city said that as many as 263 youths may have been sexually abused by Estabrooks over the three decades.
McKiggan has filed a motion for a summary judgment from the Court of Queen's Bench, which would avoid the need for a trial.
"What we're asking the court to rule on is whether the defences that the city has argued have any merit," said McKiggan.
"In a nutshell, the city's defences are: the city's not responsible for what Estabrooks did, the [Saint John Police Force] is, but the police department isn't capable of being sued."
"So we are asking the court to strike out those defences."
Justice William Grant is scheduled to hear the motion Nov. 5-6.
A case management meeting will be held on May 21 to set dates for the various steps leading up to the motion, including when the plaintiff's materials and city's reply must be filed and when affidavits and briefs are due.
Estabrooks was a police officer from 1953 until 1975, when he admitted to superiors he had sexually abused at least two boys and was transferred to the city works department. He retired in 1983.
In 1999, Estabrooks was convicted 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.
Estabrooks died in 2005.
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 that supervisors simply advised him to "move faster" to avoid being assaulted.