2 sides in class action against City of Saint John too far apart, judge to impose protocol for damage awards

From "diametrically opposed" to "still very, very far apart," the two sides in a class-action lawsuit against the City of Saint John have not been able to reach enough common ground. 

The parties were sent away last week to try to come to an agreement on how to determine individual awards. After a trial in 2022, the city was found vicariously libel for the harm caused by a police officer who sexually and physically abused children.  

Without an agreement, Justice Darrell Stephenson said he will draft the "protocol" to follow to determine who qualifies and how much money they will receive. 

In a Tuesday afternoon court appearance, Stephenson said he is working on a document that will "incorporate the input from all parties."

He will present the plan in court on March 13. Both sides will then have a chance to study the draft protocol and present feedback to Stephenson at a later date.

The class-action suit was filed against the city in 2013. 

The class members, including representative plaintiff Bobby Hayes, are seeking damages from the city as the employer of Kenneth Estabrooks. 

Estabrooks worked as a police officer from 1953 to 1975 before he was transferred to the city works department after he admitted to sexual relationships with two teenage boys. 

He was eventually charged criminally, and in 1999 he was found guilty of four counts of indecent assault and sentenced to six years in prison. Estabrooks died in 2005. 

Now in its 13th year, the class action has already been to the New Brunswick Court of Appeal and the Supreme Court, which refused to hear the city's appeal last year.

That meant the 2023 decision of the Court of Appeal of New Brunswick will stand — that the City of Saint John is vicariously liable for the sexual abuse committed by Estabrooks while he was a police officer. 

Since the Supreme Court decision in May 2024, the stumbling block has been how to determine individual damages. Last week, Stephenson called the two sides "diametrically opposed" and sent them away to try to reach some middle ground. 

During Tuesday's hearing, the plaintiffs' lawyer, Celeste Poltak, said there was "very little overlap" between the two sides.

"We're still very, very far apart," she said on a conference call with the court from Toronto. 

Stephenson said the plaintiffs have waited long enough.

"My intention is to get this nailed down — get this process done ASAP so that we can provide a venue for these victims, who have been out there so very long."

He pointed out that while the lawsuit was filed in 2013, the abuse dates back decades before that. 

"I'm going to try to get this on the rails to resolution as soon as I possibly can," Stephenson said.