Saint John liable for sexual abuse by Kenneth Estabrooks while a police officer, top court rules

New Brunswick's highest court has ruled the City of Saint John is vicariously liable for the sexual abuse of children by Kenneth Estabrooks while he worked as a police officer decades ago.

In a written decision Thursday, the Court of Appeal set aside a nearly year-old Court of King's Bench decision, with the issue of costs to be addressed later.

The lower court judge "committed reversible error in finding the police officer was not an employee of the City when he perpetrated, during working hours, the sexual abuse in question and that the 'strong connection' between job functions and wrongdoing required to justify the imposition of the vicarious liability was not established," Justice Ernest Drapeau wrote on behalf of the three-justice panel.

It's "a hugely important decision" and a legal precedent, according to Halifax-based lawyer John McKiggan, who acted for representative plaintiff Bobby Hayes and other class members in the lawsuit against the city.

The lawsuit stemmed from the harm Estabrooks inflicted between 1953 and 1975, as a police officer, and between 1975 and 1983, when he was transferred to the city works department after he admitted to sexual relationships with two teenage boys. 

"It means that the survivors … will have a means of recourse," McKiggan said of the Appeal Court's decision. "They will have some measure of accountability now for what happened to them."

Damages could be in the 'tens of millions'

Until now, case law across the country suggested that municipalities could not be held responsible for wrongful acts by police officers prior to the late-'70s, he said.

"And what the Court of Appeal has done here is … recognized that the law has evolved."

He estimates there could be hundreds of victims and that the city could face damages worth "tens of millions" of dollars, based on similar cases dealing with the "lasting harms and catastrophic effects of historical child abuse."

City to argue statute of limitations

The 10-year legal battle isn't over, however.

On Sept. 28, the Appeal Court will hear arguments from the city that the survivors waited too long to come forward; that the statute of limitations bars their claims.

In addition, a cross-appeal by the city against the 2022 finding that it's vicariously liable for the alleged sexual assaults Estabrooks committed after his transfer to the city works department, has been adjourned. The court has asked the trial judge to determine whether the Workers' Compensation Act bars any of the claims.

Still, McKiggan was excited to deliver the news to Hayes.

"It was one of the best calls I've ever made," said McKiggan, who commended Hayes for his courage in coming forward about what happened to him as a child and young man, and in "trying to hold the city accountable for their role in this terrible tragedy."

'Finally … justice is in sight'

"It's a happy day for me, a happy day," Hayes, 64, told CBC. "Finally, you know, justice is in sight."

He credited McKiggan with being "relentless" and described him as a "godsend."

"I see the victims every day, including myself, and see the devastation, you know, the alcohol, the drugs, suicides, and the hardships that people go through. And not only them, the horrific things that happened to them, but it's passed on to their families, the things that were done to them, that affected them."

Hayes, one of five men who testified during the class-action last summer, told the court 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.

On Thursday, Hayes alleged one of his childhood friends was raped by Estabrooks in his police car while the boy's brother was handcuffed to the steering wheel.

He regularly gets stopped on the street by fellow alleged victims, who want to share their "heartbreaking" stories, he said. One woman recently read him a letter from her father, who had passed away and wanted to thank Hayes for "standing up for the rest of us."

The man was allegedly repeatedly abused by Estabrooks in his police car, starting when he was eight years old, and eventually became an alcoholic, according to Hayes.

"It's something that's never going to go away, but at least the victims have found justice through John."

City spokesperson Lisa Caissie declined to comment, saying the city just received a copy of the court's decision. "We are looking into it and are not in a position to comment at this time," she said in an email.

Estabrooks retired in 1983. In 1999, the former sergeant was found guilty of indecent assault against four children, in cases dating back to the 1950s, and sentenced to six years in prison. He died in 2005.