Executive Summary: Key Legal and Evidentiary Issues

• The Court was tasked with approving an Individual Issues Protocol (IIP) to assess abuse claims in a certified class action involving historic sexual abuse by a former Saint John police officer.

• The City of Saint John was already found vicariously liable for the abuse committed by Kenneth Estabrooks between 1953 and 1975.

• The proposed procedures had to balance trial fairness, procedural efficiency, and the rights of aging and vulnerable victims.

• Neither the Plaintiff’s nor the Defendant’s proposed protocols were accepted, as both fell short of legal and fairness standards.

• The Court exercised its discretion under the Class Proceedings Act to impose a hybrid IIP combining fair process with case management safeguards.

• The ruling emphasized the urgency of resolving claims efficiently due to the age and trauma history of the claimant class.

Facts of the case

In Hayes v. Saint John (City), 2025 NBKB 58, the Court of King’s Bench of New Brunswick addressed a critical procedural phase in a long-running class action. The case stems from the sexual abuse committed by Kenneth Estabrooks, a former City of Saint John police officer, who abused dozens of children while in uniform between 1953 and 1975. Estabrooks leveraged his position as a police officer to gain access to and control over his victims, often inside City police vehicles. He was eventually convicted of multiple counts of indecent assault and died in prison in 2005.

In 2013, Robert Hayes filed a class action on behalf of himself and other abuse survivors, alleging the City was liable for Estabrooks’ conduct. The action was certified under New Brunswick’s Class Proceedings Act. In 2023, the Court of Appeal confirmed that the City of Saint John was vicariously liable for the sexual, physical, and mental abuse suffered by the class members during Estabrooks’ time as a police officer.

The procedural motion and parties’ positions

The case returned to the Court in 2025 to finalize how individual claims would be adjudicated. This involved establishing an Individual Issues Protocol (IIP) under section 29 of the Class Proceedings Act, which empowers the Court to craft procedures that are fair, efficient, and just for both claimants and the defendant.

The plaintiff proposed a two-track system involving assessments by experts and fixed damage schedules, with minimal rights for the defendant to cross-examine or call evidence. The City proposed a conventional litigation model with full procedural rights, including cross-examination and viva voce evidence. The plaintiff argued the City's approach would delay resolution for years, while the City emphasized fairness and due process.

The Court’s approach and legal reasoning

Justice Stephenson rejected both models as unbalanced. He highlighted that many claimants are now in their late 50s to early 70s, and that justice demanded a faster, trauma-informed resolution process. However, he also reaffirmed that procedural fairness required that the City have the right to respond to individual claims, including limited cross-examination and evidence presentation.

Drawing on decisions such as Lundy v. VIA Rail, Brazeau v. Canada, and Cavanaugh v. Greenville Christian College, the Court exercised its broad discretion to impose a custom IIP. The Court emphasized that class action protocols must:

• Ensure procedural fairness and justice for both sides,

• Allow cross-examination where justified,

• Provide appellate reviewability,

• Avoid converting the process into a rigid, no-cost compensation scheme,

• Protect vulnerable claimants from retraumatization while preserving legal standards.

The final protocol included court-appointed experts, an administrator to manage claims, limited but meaningful rights for the defendant to challenge evidence, and an expedited hearing model. All costs of the process would be borne by the City, with claimants required to submit sworn claim forms supported by affidavit evidence.

Conclusion

Justice Stephenson approved a court-crafted Individual Issues Protocol tailored to the unique needs of the historic abuse survivors and the procedural rights of the City of Saint John. The decision ensures that the remaining claims in this long-running class action will be resolved in a way that is both efficient and legally sound, acknowledging the trauma of the victims and the systemic failures of the past.