SJC/533/2013

IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF SAINT JOHNCOURT OF QUEEN'S 13EI<fCH

CLERK I SAiNT JOl'lN

BETWEEN:

Citation: Hayes v. City of Saint John et al - 2016NBQB 051

Date: 2016 03 29

ROBERT HAYES

Plaintiff

- and -

COUR OU Bl\NC Dtf~ OJ' l"'';''\'~.'

(~Fl£:1!'lE S~;1'f!"'J!il\tIi

THE CITY OF SAINT JOHNTHE SAINT JOHN POLICE COMMISSIONTHE SAINT JOHN POLICE DEPARTMENT

Defendants

BEFORE:

HEARING HELD:

DATE OF HEARING:

DATE OF DECISION:

COUNSEL:

Justice William T. Grant

Saint John

February 29, 2016

March 29, 2016

, John McKiggan, Q.c. for PlaintiffMichael D. Brenton, Q.C. for the Defendants

DECISION

GRANT, ],

BACKGROUND

[1] The underlying action in this case arises from the actions of Kenneth

Estabrooks ("Estabrooks") who was allegedly employed by the defendants at

various times as a police officer and a member of the Saint John City Works

Department. The plaintiff, Robert Hayes, on behalf of himself and other

members of a class, alleges that he was sexually assaulted by Estabrooks in the

City of Saint John between January 1st, 1953 and December 31 st

, 1998.

[2] He also alleges that the defendants owed a fiduciary duty to the class

members to protect them from actionable physical, mental and/or sexual harm

perpetrated by Estabrooks; that they breached that duty; that they owed a duty

of care to the class members to protect them from actionable physical, mental

and/or sexual harm perpetrated by Estabrooks and that they breached that duty

of care. As a result, Mr. Hayes claims damages against the defendants and

seeks to have this action certified as a class action under the Class

Proceedings Act, S.N.B. 2011 c. 125 ("the Act").

[3] In the statement of claim, Mr. Hayes alleges that there is an identifiable

class that would be fairly and adequately represented by him; that the claim

raises common issues and a class proceeding would be the preferable procedure

for the resolution of such common issues.

[4] The certification motion is scheduled to be heard in July of 2016.

[5] The defendants allege in their statement of defence that, between March

20th, 1953 and October 29th

, 1975, Estabrooks was a police officer in Saint John

and as such he was a public office holder but not an employee of the City of

Saint John.

[6] They also allege that between November 3rd, 1975 and December 31s\

1983, Estabrooks was an employee of the City of Saint John.

[7] They further allege that after December 31st, 1983 Estabrooks was retired.

[8] In this motion the defendants request, inter alia, the following:

-1. The Plaintiff, Robert Hayes, or Solicitors for the Plaintiff,McKiggan Hebert, provide, within thirty (30) days of thehearing of the within Motion, the names of the potential classmembers that have contacted McKiggan Hebert forrepresentation and the time or time frame during whicheach of them alleges to have been assaulted by KennethEstabrooks ("Estabrooks");

2.

3. Costs on this motion; and

4.

JURISDICTION

[9] This motion is governed by the Class Proceedings Ac~ supra. The

defendants rely on section 14 of the Act which states:

14. At any time, the court may make an order it considersappropriate respecting the conduct of a class proceeding toensure its fair and expeditious determination and, for thatpurpose, may impose on one or more of the parties theterms or conditions the court considers appropriate.

[10] They also rely on the Court's inherent jurisdiction to control its procedure.

I have no hesitation in finding that the Court has the jurisdiction to make the

order requested.

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LAW

[11] There are no reported decisions in New Brunswick dealing with the issue

raised in this motion. In fact, the parties were not able to refer me to any

reported decisions in Canada dealing with the issue.

[12] A certification motion is brought under section 6 of the Act, the

applicable portions of which read as follows:

6(1) The court shall certify a proceeding as a classproceeding on a motion under section 3 or 4 if, in theopinion of the court,

(a) the pleadings disclose or the Notice of Applicationdiscloses a cause of action,

(b) there is an identifiable class of two or more persons,

(c) the claims of the class members raise a common issue,whetll1er or not the common issue predominates overissues affecting only individual members,

(d) a class proceeding would be the preferable procedurefor the fair and efficient resolution of the dispute, and

(e) there is a person seeking to be appointed asrepresentative plaintiff for the class who

(i) would fairly and adequately represent theinterests of the class,

(ii) has produced a plan for the class proceeding thatsets out a workable method of advancing the classproceeding on behalf of the class and of notifyingclass members of the class proceeding, and

(iii) does not have, with respect to the commonissues, an interest that is in conflict with theinterests of other class members.

6(2) In determining whether a class proceeding would bethe preferable procedure for the fair and efficientresolution of the dispute the court shall consider

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(a)whether questions of fact or law common to theclass members predominate over any questionsaffecting only individual members,

(b)whether a significant number of the classmembers have a valid interest in individuallycontrolling the prosecution of separate proceedings,

(c)whether the class proceeding would involve claimsthat are or have been the subject of any otherproceedings,

(d)whether other means of resolving the claims areless practical or less efficient,

(e)whether the administration of the classproceeding would create greater difficulties thanthose likely to be experienced if relief were sought byother means, and

(f)any other matter the court considers relevant

[13] The defendants allege that because there are three distinct periods. of

time which must be considered in this action and because they intend to

challenge whether or not the plaintiff can satisfy sub-paragraphs 6(1)(b), (c) and

(d) they need to know who the members of the alleged class would be for each

of those periods of time.

[14] Mr. Hayes submits that the names of the persons who have

contacted his lawyers is privileged information, that it is not appropriate to

disclose it before the certification hearing and that the defendants'

request is an attempt to obtain discovery of the proposed class members

prior to the hearing.

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ANALYSIS AND DECISION

A. OVERVIEW OF THE ACT

[15] The Class Proceedings Act, supra, provides in paragraph 3(1) that:

3(1) One member of a class of persons who are resident inNew Brunswick may commence a proceeding in the courton behalf of the members of that class.

[16] The Act then states [section 3(3)] that a person who commences a

proceeding under section 3(1) shall apply for an order certifying the proceeding

as a class proceeding and appointing that person as the representative for the

class.

[17] In an action commenced under section 3(1), as this one was, the

obligation is on the plaintiff to make the motion for certification. In doing so, he

or she must satisfy all the requirements set out in section 6(1) and any

applicable portions of section 6(2) of the Act. If he or she cannot do so, then

the action will not be certified as a class proceeding. The burden rests entirely

with the plaintiff.

[18] Section 9 of the Act provides that the Court shall not refuse to certify a

proceeding for the reasons enumerated therein, including, section 9(d) which

states,

(d) the number of class members or the identity of each classmember is not ascertained or may not be ascertainable.

[19] The Act further provides, in section 10(1), what shall be contained in a

certification order, including, under paragraph 10(1)(f), " ... the manner in which

and the time within which a class member may opt out of the class proceeding."

and, in section 10(1)(g), that the order will "state the manner in which and the

time within which a person who is not a resident of New Brunswick may opt into

the class proceeding ...",

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[20] Section 21(1) of the Act provides that" ... notice that a proceeding has

been certified as a class proceeding shall be given by the representative plaintiff

for the class to class members .... "

[21] Section 21(6) provides that the notice will, inter alia,

a) state the manner in which and the time within which a class

member may opt out of the class proceeding;

b) describe the class proceeding, the relief sought, any

counterclaim or third party claim being asserted, any agreements

respecting fees and disbursements and the possible financial

consequences of the class proceeding to class and subclass

members;

c) state that the judgment on the common issues for the class

will bind all class members who do not opt out of the class

proceeding;

d) describe the rights, if any, of class members to participate in

the class proceeding; and

e) give any other information the Court considers appropriate.

[22] As I read these provisions of the Act, the members of the class, other

than the representative plaintiff, are not required to come forth and make a

decision about whether or not to participate in the litigation until they have all of

the above information which is after the action has been certified. Whether they

decide to participate in the litigation or not is their decision to make and they are

entitled to make it in the manner and at the time prescribed by the Act.

B. TlMEFRAME OF THE CLASS

[23] The defendants submit that they need the names of the proposed class

members in order to help define the timeframe of the class. In the statement of

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claim, the plaintiff refers to a 45 year timeframe but the defendants say that is

too broad and that it should be divided into three different periods as set out

above.

[24] The burden rests with the plaintiff to establish that there is an identifiable

class of two or more persons with claims that raise a common issue. It is up to

him to decide what evidence he must adduce in order to obtain a certification

order. Whether or not that evidence is adequate is a decision the plaintiff must

make in advance of the hearing. Only after receiving all of the plaintiWs

admissible evidence should the court evaluate it. It would be premature to do so

at this time.

B. COMMON ISSUES

[25] The defendants further submit that because Estabrooks held different

positions during the 45 year period mentioned in the statement of claim, it

cannot be determined whether there are common issues unless the plaintiff

discloses which persons had relationships with Estabrooks in which timeframes.

[26] While this submission appears at first blush to have some merit, it is

important to keep in mind that the Act only requires the plaintiff to satisfy the

Court that there is an identifiable class of two or more persons with claims that

raise a common issue. The Act does not contemplate a sorting out of the

relative positions of each potential claimant at the certification stage, which is

consistent with the fact that, other than the representative plaintiff, they are not

required to decide until later in the proceeding whether or not they want to be

involved in the litigation.

C. PREFERABLE PROCEDURE

[27] The defendants further submit that having these names will assist the

Court in deciding, under section 6(1)(d) of the Act whether or not a class

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proceeding is the preferable procedure for dealing with these claims. They rely

on the decision in The College of the North Atlantic v. Thorne, 2015 NLCA

47 which, they submit, stands for the proposition that the plaintiff must show

that the class consists of a substantial group of persons. In that case the Court

stated at paragraph 25 that "a relevant factor for ... (determining preferable

procedure) ... is whether there is a substantial group of persons within the class

who are desirous of pursuing their claim through the means of a class action.... "

(underlining by Grant J.). The court did not say that it was a requirement that

the plaintiff establish that the class consists of a substantial group of persons in

order to show that a class action was the preferable procedure, only that it was a

relevant factor.

[28] Moreover, when resolving this issue the court found that, while it would

have been better if more detail about the level of interest of the other members

of the class had been set out in the application, " ... the trial judge had 'some

basis in fact' to conclude as he did that the evidentiary basis was sufficient to

certify the claim, including on the issue of the level of interest by members of the

class to pursue the action."

[29] In Keatley Surveying Ltd. v. Teranet Inc. 2015 ONCA 248 Sharpe J.

A. stated, in part, at paragraphs 72-3:

[72] ... It is in the very nature of class actions that many, if notmost, individual class members lack the motivation or the will tocommence proceedings. The access to justice and behaviourmodification goals of class proceedings will often depend upon arepresentative plaintiff taking the initiative in circumstanceswhere other members of the class would be ignorant of their lossor acquiesce because of disinterest, lack of resources or fear ofan adverse costs award. If multiple claims exist, therepresentative plaintiff does not have to conduct a referendum todetermine how many class members want to sue. Ontario's classaction regime features an opt-out procedure which affords classmembers who do not wish to have their claims advanced the

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right to disassociate themselves from the action. There is nocorresponding requirement to establish a willing class.

[73] ... in cases where the interest of the representative plaintiffis sufficiently idiosyncratic to call into question the utility of aclass proceeding, the court may exercise a gatekeeper functionunder the ... preferable procedure requirement....

[30] As in Ontario and Newfoundland, the New Brunswick regime, which also

features an opt-out procedure, does not require the plaintiff to prove there is a

certain level of interest among the members of the class in order to satisfy the

court that a class action is the preferable procedure. Moreover, in order to meet

the requirements of the Act on a certification motion there is no prescribed

formula as to what evidence must be adduced. It is up to the plaintiff to

determine if the evidence he or she adduces will satisfy that burden and then the

court must decide if he or she has done so. It is not up to the court to advise

him or her of what evidence must be adduced in advance of the hearing.

D. WILL DISCLOSURE OF NAMES ASSIST THE COURT?

[31] The defendants urge the Court to consider whether or not the disclosure

of the names of the class members may be valuable in helping it decide the issue

of certification. They submit that the issue cannot be addressed in a vacuum

and that since the plaintiff has the names, the request is not onerous. As stated

earlier, the decision as to what evidence will be valuable to the Court in deciding

the issues under section 6 of the Act must be made by the plaintiff. It is his

motion and his burden. If he can satisfy the Court, then he has met the burden,

if not, then he has failed to meet the burden.

[32] In addition I note that under section 7 of the Act, the Court may adjourn a

certification motion to allow the parties to amend their materials or pleadings or

permit further evidence to be introduced. I note also that section 12 of the Act

provides for decertifying an action if the Court deems it appropriate. In my view,

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those provisions are a recognition that the certification procedure is not an all or

nothing motion. It is an evolving process which, in this case, has not evolved to

the point which would justify requiring the plaintiff to disclose the names of the

other class members.

E. ARE THE NAMES CONFIDENTIAL?

[33] Finally, the defendants take issue with the plaintiff's suggestion that there

are privacy and confidentiality issues that are engaged by their request in this

motion. They submit that a person who is a proposed litigant has no expectation

of privacy. That being said, they suggest that any provisions the Court may

want to include in an order to protect the names of individuals, including a

sealing order, would be acceptable to them.

[34] The flaw I see in that submission is that the other members of the class

have not committed to becoming litigants. The class action regime is structured

in such a way that they can delay making that decision until such time as they

have a great deal more information than they would have at this time. Requiring

them to come forward at this time would, in my view, be contrary to the spirit of

that regime and the raisons d'etre for it as alluded to in Keatley Surveying,

supra.

F. CONCLUSION

[35] After considering the submissions of the defendants in the context of the

regime set out in the Act and the underlying reasons for that regime, I find that

the effect of making the order sought by the defendants in this motion would be

to require those class members to make a decision which they are not required

to make at this time. Such an order would also, in effect, require the plaintiff to

do something which he has neither the authority, nor indeed, the power to do at

this stage of the proceeding given the legal framework set out in the Act.

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G. DISPOSITION AND COSTS

[36] For all of the foregoing reasons this motion is dismissed with costs of

$1,000.00 including disbursements.

William T. GrantJudge of the Court of Queen's Bench

of New Brunswick

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