Plaintiffs in class action over child abuser asked to pay costs to City of Saint John

Bobby Hayes says "Good luck" to the City of Saint John if it expects him to pick up the tab for a decade-long class-action lawsuit.

"Telling me that I'm going to cover their legal costs — they're crazy," said Hayes, the representative plaintiff in the lawsuit against the city.

"Good luck with that one. And the city doesn't want to celebrate too early because they're the ones that are going to be paying when this appeal is gone through and the city is found guilty," Hayes said Friday afternoon after another court appearance in the case.

Justice William Grant has reserved decision on whether to award costs to the city. No return date has been set.

Moved from police to works department

The lawsuit alleges the city is responsible for the actions of one of its employees who is alleged to have sexually assaulted dozens of children during his time as a police officer.

Kenneth Estabrooks was a police officer from 1953 to 1975, when he was transferred to the city's works department after admitting to sexual relationships with two teenage boys.

He continued to be employed by the city until his retirement in 1983.

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

The class-action began in 2013 and finally got to trial in June 2022. The six-day trial heard testimony from five men ranging in age from 58 to 66. They said Estabrooks preyed upon them when they were boys in Saint John.

The only one that can be named is Hayes, the representative plaintiff.

Hayes said 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 that he was sexually assaulted again by Estabrooks 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.

City only partially liable

Grant eventually ruled that the city was not vicariously liable for Estabrooks's actions while he was a police officer. It was only vicariously liable for the period of time while Estabrooks was employed in the works department.

As the city's lawyer, Michael Brenton, pointed out during arguments on Friday morning, the only allegations of sexual assault during that period of time were made by Hayes, who said he was aware of three other adult employees of the works department.

Following last year's trial, the city asked for costs to be awarded. It was that issue that took the case back to court on Friday.

Lawyers for the plaintiff argued that the law allows for no costs to be ordered in certain circumstances, said lawyer Celeste Poltak.

Foremost among them, she said, is to protect access to justice for everyone. She said many of the class members are "extremely vulnerable and marginalized individuals."

Not making plaintiffs pay costs, said Poltak, will "ensure no chilling effect on future cases."

Otherwise, she said, people who aren't able to pay will not attempt to seek justice through the courts.

Judge's decision appealed

Hayes is confident that he won't have to pay. In fact, he's optimistic that the Court of Appeal will rule in the plaintiffs'  favour

Another lawyer for the plaintiffs, Adam Tanel, said they believe the judge erred by not making the city liable for the actions of one of its police officers.

"We think the decision was wrong. We think that municipalities are responsible for their police forces — that the City of Saint John had authority over the Saint John Police Force, had extensive control over operations.

"The City of Saint John provided the guns, the handcuffs and the car that this abuser used to perpetrate these assaults. The city ought to be held liable."

So far, no date has been set for the Court of Appeal to hear the case.

If Grant's decision stands, only those who were abused between 1975 and 1983 will be eligible for compensation.

Based on evidence heard at last year's trial, that would include Hayes and three other men he said he was aware of.

It would not include dozens of plaintiffs who said they were sexually abused by Estabrooks when they were children.

Hayes said the class includes roughly 140 individuals. He said he's aware of many more who are no longer alive, and others who have stories to tell but aren't strong enough to go through the legal fight.

"This is torture, living with what he's done," said Hayes.

Tanel said, "I think we can't can't overstate the extent of the damage that this monster caused … But it's also a story of human bravery.

"It's remarkable that Bobby Hayes was able to come forward and be such a strong advocate on behalf of the countless children that this monster abused."