Class-action against City of Saint John for harm caused by police officer is back in court

A lawsuit against the City of Saint John for sexual abuse by a police officer was back in court this week. 

The class-action suit, filed in 2013, is now in its final stages — determining who qualifies and how much money they will receive. 

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. He was sentenced to six years in prison, where he died in 2005. 

Now in its 13th year, the case 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. 

The only thing left to be sorted out is who qualifies as a victim and how much they will get paid. But how to sort that out is still in dispute. 

Three days were set aside this week in the Court of King's Bench to come up with a protocol to follow for establishing awards. 

Sides 'diametrically opposed'

At the beginning of a full day of legal arguments on Tuesday, Justice Darrell Stephenson described the two sides as being "diametrically opposed." 

One of the major sticking points is the cross-examination of plaintiffs. The plaintiffs' lawyers were opposed to cross-examination, but the city's lawyer, Michael Brenton, insisted on having the option to question plaintiffs. 

Brenton used the example of a person claiming they're unable to work because of psychological damage caused by having been sexually assaulted by Estabrooks as a child. But, said Brenton, perhaps the person wasn't physically able to work because of a snowmobile accident. 

Brenton said he wants to ensure the right to cross-examine plaintiffs and potentially call other experts, such as medical doctors. 

After lawyers for both sides spoke during the lunch break, they came back seemingly more open to flexibility. 

The lawyers for the plaintiffs said they would make changes to their original position and present it to the court and to Brenton by the end of Wednesday. 

Brenton said he couldn't make any decisions without getting direction from the city and he didn't know if the issue could be added to the next Saint John Council agenda. 

The sides agreed to get together on Wednesday afternoon to see if a mutually acceptable protocol could be worked out. If they couldn't, Stephenson said he would impose one on the parties. 

"We need to bring this to a completion and we need to do so as soon as we can," said Stephenson.

"We have a number of people who were clearly abused by Mr. Estabrooks … in the most heinous of circumstances, as the Court of Appeal referenced in their decision. That's why we need to get this on the road and we need to get this process completed ASAP." 

He said he is "keenly aware" of the age of claimants. 

The plaintiffs' lawyer, John McKiggan, pointed out that Estabrooks became a police officer almost 75 years ago, meaning the youngest plaintiffs are in their 60s, while the earliest claimants are in their 90s. 

All of the plaintiffs were minors at the time, said McKiggan. 

He said the exact number of plaintiffs isn't certain. He said his office has been contacted by 90 people and out of those he's been able to reach, "every one of them wanted to proceed."

McKiggan told the court that some people are likely waiting before coming forward to find out what the court will decide about the process and what they will be subjected to, including cross-examination.