Kenneth Estabrooks class action decision reserved by judge

A proposed lawsuit against the City of Saint John for its role in failing to detect that a former employee was a serial child sexual predator while on the job is awaiting a ruling whether it can proceed as a class action.

Justice William Grant reserved judgment Tuesday following two days of arguments about whether victims of the late Ken Estabrooks, a former Saint John police officer and municipal works employee, have enough in common to pursue a single case against the city as a group.​

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Toronto class action lawyer Kirk Baert, acting on behalf of victims, told Grant there is no practical way for the lawsuit to proceed unless it is first certified as a class action.

"There is no other feasible method that would provide access to justice and deterrence," said Baert.

Works 30 years for city

Estabrooks was employed by the city between 1953 and 1983. He worked first as a police officer until 1975 when he was transferred out of the force to work at a city garage.

Years after his retirement. Estabrooks was investigated and charged for decades of sexual abuse against five boys and one girl, including while he was on the job as a police officer. In 1998 he was convicted on four of those charges but a subsequent investigation launched by the city suggested he may have had more than 150 victims.

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Estabrooks died in 2005 but a group led by Robert Hayes began developing a lawsuit against the city in 2013.

Robert Hayes affidavit

Hayes says he was first sexually assaulted by Estabrooks in 1970 as a 10-year-old and many times after that during the following three or four years. Hayes says Estabrooks would take him to an isolated part of Saint John's Tin Can Beach for the assaults and claims he witnessed it happening to others.

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

"He was a big man. Because he was a policeman he carried a gun. All of the kids I knew in the south end were afraid of Estabrooks."

Hayes said he was sexually assaulted again by Estabrooks as a young man when the two were both employed by the city works department.

City's inaction at issue

A key allegation against the city is that it took no action against Estabrooks even after he admitted assaulting two boys who complained to police in 1975. No charges were laid but that's the year Estabrooks was transferred out of the police department.

"This is the classic what did they know and when did they know it,"  Baert told Grant about the victims' case.

The allegation is that there is a serial predator allowed to operate for decades because of the negligence and bungling of the defendant.- Kirk Baert, lawyer representing victims

"The allegation is that there is a serial predator allowed to operate for decades because of the negligence and bungling of the defendant."

Although the lawsuit originally named the Saint John Police Department and the Saint John Police Commission as co-defendants, those two were dropped Tuesday and the case is being pursued exclusively against the city.

The police commission was not created until after Estabrooks left the force while the police department is not considered to be an independent legal entity.

City says all victims differ

Michael Brenton, who is acting for the city and its insurer, argued that there are too many differences among Estabrooks's victims for them to sue as a single group. Each victim faced a unique situation and suffered individual damages that cannot be combined into one action, he told Grant.

You can't get compensation for hurt feelings.- Michael Brenton, lawyer for City of Saint John

"When did it happen?  Where did it happen? How long did it happen? Was he a police officer?  Was he a city works employee," said Brenton.

"There's going to have to be expert evidence for everyone of these plaintiffs, for each one of them."

Brenton said it may even turn out that some victims in the group suffered little and could wrongly be compensated unless cases are heard individually.

"Some of these people might not even have a compensable claim," said Brenton. "You can't get compensation for hurt feelings."