City of Saint John 'vicariously liable' for police officer's sexual abuse of children

Saint John appeal in class action lawsuit denied The city of Saint John may be on the hook for millions in a class action lawsuit involving a former employee.

Hundreds of sexual abuse survivors in New Brunswick could be eligible for compensation following a decision delivered Thursday by the Supreme Court of Canada.

Canada's highest court dismissed a bid by the City of Saint John to overturn a ruling that found the city bears some responsibility for the sexual abuse of children by a member of its police force who served between 1953 and 1975.

As is its practice, the court did not give reasons to justify its decision not to hear the case.

"It is a final decision that the city is now on the hook and is responsible for compensating every single child that (the police officer) abused while he was a cop in Saint John," Halifax lawyer John McKiggan said in an interview.

"This has been going on for 11 years because the city has denied their responsibility every step of the way."

A spokesperson for the city issued a brief statement Thursday, saying officials had just heard about the decision and were "getting advice on next steps."

In 2013, a private investigation company hired by the city to investigate allegations involving former police Sgt. Kenneth Estabrooks determined the number of potential victims was 263, though 33 people on that list were no longer alive.

Later that year, Saint John resident Robert Hayes, who is now 65, filed a class-action lawsuit alleging he had been sexually assaulted when he was a boy by Estabrooks, who died in 2005. In his statement of claim, Hayes accused the city, the police force and the police commission of failing to act to prevent the abuse in order to protect their reputations.

A key question in the case was whether the city could be held vicariously liable, meaning it was responsible for the actions of someone under its authority.

In March 2023, New Brunswick's Court of King's Bench decided the city was not vicariously liable for harm caused by the police officer, but that decision was overturned by the province's Court of Appeal in September 2023. That's when the city filed an application for leave to appeal to the Supreme Court.

McKiggan, who represents Hayes, said case law prior to the offences in question held that municipalities were not vicariously liable for the actions of officers while carrying out their duties.

McKiggan said the provincial Court of Appeal was aware none of the abuse happened while Estabrooks was actually doing his job, but the three-judge panel decided the city was partly responsible for his actions because it had granted him the authority of a police officer.

"They put him in a position of authority over these children, and he used that authority to sexually abuse children," McKiggan said in an interview Thursday.

He said his client was thrilled with the decision.

"He was over the moon today," the lawyer said. "He's never wavered in his determination to follow this through to the very end."

McKiggan said the city has the option of negotiating a compensation package or insisting that each survivor appear in court for an individual damages assessment, which could take years to complete.

Allegations against Estabrooks first surfaced in 1975 when he was a 22-year veteran of the Saint John Police Force, and he resigned that year when confronted with sexual abuse allegations from two teenage boys.

Court heard Estabrooks confessed to his superiors about the assaults, but instead of laying criminal charges, the city transferred him to a job with the public works department, where he continued to sexually abuse children. The lower court found the city vicariously liable for Estabrooks's actions as a public works employee.

"He had confessed to abusing these kids, so they knew he was an abuser," McKiggan said.

In 1999, Estabrooks was convicted of indecently assaulting four young people between 1957 and 1982 and he was sentenced to six years in prison.

This report by The Canadian Press was first published May 16, 2024.

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