Accuser awarded $25K in costs early in lawsuit over alleged sex assaults by cop

Bobby Hayes, whose lawyers succeeded in getting a class action lawsuit certified against the City of Saint John, on behalf of potentially more than 100 victims of sexual assault by the late police officer Kenneth Estabrooks, has been awarded $25,000 in costs.

The award from the Court of Queen's Bench is unprecedented after a class action certification in New Brunswick but only a fraction of what Hayes's lawyers sought.

"As far as we've been able to determine, that is the largest costs award in New Brunswick on a contested motion," John McKiggan, Hayes's Halifax-based lawyer, told reporters outside the courtroom after the proceedings.

"Basically, what the court was saying is that they recognize this was an important step in the proceeding and it was one that merited a significant award."

"In other words, they were recognizing the effort that both sides put in, when prosecuting and defending the claim and the court recognized that there should be a significant cost award attached to that."

• Judge OKs class action lawsuit against Saint John 
• Kenneth Estabrooks alleged victims' lawyer fights city's attempt to get names 
• Kenneth Estabrooks case costs Saint John $446K in investigation bills 

The lawyers had asked for $150,000 plus disbursements of approximately $33,000, in part because they said the city had mounted a "scorched earth" defence, fighting the certification at every step.

And it might not be over yet.

Using their regular hourly rates, the value of that time would exceed half a million dollars plus tax.-Justice William Grant

The city is seeking leave to appeal the class action certification. The Court of Appeal will consider the request on June 22.

In his written decision filed Friday, Justice William Grant acknowledged that a certification motion is a "do or die" proceeding for the plaintiff because if he or she is not successful, the litigation ends. 

Grant said it was clear the plaintiff  "spared no effort." 

The judge also acknowledged receipt  of a summary of fees on behalf of two law firms representing Hayes that between them billed 867 hours. 

"Using their regular hourly rates the value of that time would exceed half a million dollars plus tax," wrote Grant. 

Hayes's lawyers had argued they expected their costs to be deducted from the final costs award if the 117 people interviewed by a private investigator hired by the city were ultimately successful in their lawsuit.

Based on the assumption that each would receive an average award of $222,000, that would result in a total award in the range of $26 million, for which costs would exceed $780,000, wrote Grant, reciting the argument made by Hayes's lawyers.

Big risk for high reward

Defence lawyers for the city had argued that $2,500 would be an appropriate costs award based on previous cases.

Grant agreed with them that class actions are often cases of big risk for high reward.  

"But if there is no possibility of any meaningful costs being payable until the conclusion of the case, the field of lawyers who could afford, let alone be willing to take the risk, is narrowed considerably," he wrote.

Grant said that would give defendants with deep pockets an enormous advantage over potential plaintiffs. 

Class members not rich

"I am satisfied, based on the record, that it is very unlikely that the potential class members in this case would be able to pursue these claims on their own," Grant wrote.

"In  my view a class action proceeding is most likely their only hope of obtaining justice for the abuse they suffered and I find that access to justice is an issue of paramount importance in this litigation as well an important consideration on the question of costs."

The $25,000 judgment includes $1,000 previously awarded when the city lost its bid to get the names of the class members.

Hayes's lawyer was expecting Justice Grant to deal with his client's request to have the city pay for the notice program to advise class members that the class action has been certified.

Estabrooks, who died in 2005, was a police officer from 1953 to 1975, when he admitted he had sexually abused at least two boys and was transferred to the works department without being charged. In 2012, the city paid for a private investigation that found evidence of at least 79 victims Estabrooks and possibly many more.