2018 NBCA 51, 2018 NBCA 51

Source: Court of Appeal of New Brunswick

Date: 2017-02-09

Jurisdiction: New Brunswick

Citation: 2018 NBCA 51

Opinion

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 7-17-CA THE CITY OF SAINT JOHN APPELLANT THE CITY OF SAINT JOHN APPELANTE - and - - et - ROBERT HAYES, on behalf of himself and other class members RESPONDENT ROBERT HAYES, en son nom personnel et au nom d’autres membres du groupe INTIMÉ The City of Saint John v. Hayes, 2018 NBCA 51 The City of Saint John c.

Hayes, 2018 NBCA 51 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Quigg CORAM : l’honorable juge Larlee l’honorable juge Richard l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: February 9, 2017 Appel d’une décision de la Cour du Banc de la Reine : le 9 février 2017 History of Case: Historique de la cause : Decision under appeal: 2017 NBQB 25 Décision frappée d’appel : 2017 NBBR 25

Preliminary or incidental proceedings: Court of Queen’s Bench: 2016 NBQB 50 2016 NBQB 51 2016 NBQB 125 2017 NBQB 87 Court of Appeal: [2017] N.B.J. No. 225 Procédures préliminaires ou accessoires : Cour du Banc de la Reine : 2016 NBQB 50 , 2016 NBBR 50 2016 NBBR 51 2016 NBBR 125 2017 NBBR 87 Cour d’appel : [2017] A.N.-B. no 225 Appeal heard: December 6, 2017 Appel entendu : le 6 décembre 2017 Judgment rendered: August 23, 2018 Jugement rendu : le 23 août 2018 Counsel at hearing: For the appellant: Michael D. Brenton, Q.C. and Geneva McSheffery For the respondent: John A. McKiggan, Q.C., Kirk M.

Baert and Celeste Poltak Avocats à l’audience : Pour l’appelante : Michael D. Brenton, c.r. et Geneva McSheffery Pour l’intimé : John A. McKiggan, c.r., Kirk M. Baert et Celeste Poltak THE COURT The appeal is allowed in part. Reasons to follow. LA COUR L’appel est accueilli en partie. Les motifs suivront. The following is the judgment delivered by THE COURT [1] The appeal is allowed in part. The order certifying the action as a class proceeding is upheld,but the list of common issues is amended by removing the items relating to an alleged fiduciary duty. Because of the divided success, nocosts are awarded.

Reasons for decision will follow shortly.

Version française de la décision rendue par LA COUR [1] L’appel est accueilli en partie. L’ordonnance certifiant l’instance à

titre de recours collectif est confirmé, mais la liste des questions communes est modifiée en éliminant celles ayant trait à une prétendue obligation fiduciaire. Compte tenu du succès partiel, aucuns dépens ne sont adjugés. Motifs à suivre sous peu. COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 7-17-CA THE CITY OF SAINT JOHN APPELLANT THE CITY OF SAINT JOHN APPELANTE - and - - et - ROBERT HAYES, on behalf of himself and other class members RESPONDENT ROBERT HAYES, en son nom personnel et au nom d’autres membres du groupe, INTIMÉ The City of Saint John v.

Hayes, 2018 NBCA 51 The City of Saint John c. Hayes, 2018 NBCA 51 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Quigg CORAM : l’honorable juge Larlee l’honorable juge Richard l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: February 9, 2017 Appel d’une décision de la Cour du Banc de la Reine : le 9 février 2017 History of Case: Historique de la cause :

Decision under appeal: 2017 NBQB 25 Décision frappée d’appel : 2017 NBBR 25 Preliminary or incidental proceedings: Court of Queen’s Bench: 2016 NBQB 50 2016 NBQB 51 2016 NBQB 125 2017 NBQB 87 Court of Appeal: [2017] N.B.J.

No. 225 Procédures préliminaires ou accessoires : Cour du Banc de la Reine : 2016 NBQB 50 , 2016 NBBR 50 2016 NBBR 51 2016 NBBR 125 2017 NBBR 87 Cour d’appel : [2017] A.N.-B. no 225 Appeal heard: December 6, 2017 Appel entendu : le 6 décembre 2017 Judgment rendered: August 23, 2018 Jugement rendu : le 23 août 2018 Reasons delivered: September 20, 2018 Motifs déposés : le 20 septembre 2018 Reasons for judgment by: The Honourable Justice Richard Motifs de jugement : l’honorable juge Richard Concurred in by: The Honourable Justice Larlee The Honourable Justice Quigg Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Quigg Counsel at hearing: For the appellant: Michael D.

Brenton, Q.C. and Geneva McSheffery For the respondent: John A. McKiggan, Q.C., Kirk M. Baert and Celeste Poltak Avocats à l’audience : Pour l’appelante : Michael D. Brenton, c.r., et Geneva McSheffery Pour l’intimé : John A. McKiggan, c.r., Kirk M. Baert et Celeste Poltak

THE COURT The appeal is allowed in part. The order certifying the action as a class proceeding is upheld, but the list of common issues is amended by removing the items relating to an alleged fiduciary duty. Because of the divided success, no costs are awarded. LA COUR Accueille l’appel en partie. L’ordonnance certifiant l’action à

titre de recours collectif est confirmée, mais la liste des questions communes est modifiée par suppression des éléments relatifs à l’obligation fiduciaire prétendue. L’appelante et l’intimé ayant obtenu partiellement gain de cause, la Cour n’accorde pas de dépens. The judgment of the Court was delivered by RICHARD, J.A. I. Introduction [1] Convicted sexual offender Kenneth Estabrooks is now deceased. Between 1953 and 1975, Mr. Estabrooks worked as a police officer with the Saint John Police Department. It is alleged that, during that time, he was using his position to sexually assault a number of individuals.

In 1975, the Police Department received information regarding Mr. Estabrooks’ sexual conduct toward two boys. Mr. Estabrooks was transferred to work with the City Works Department of the City of Saint John, a position he held until his retirement in December 1983. While in that employ, Mr. Estabrooks allegedly continued to commit sexual assaults. In 1998, Mr. Estabrooks was charged with sexual crimes committed between 1957 and 1982. The following year, he was convicted of four of the six counts alleged against him and was sentenced to imprisonment for six years. [ 2 ] Robert Hayes alleges he was one of Mr.

Estabrooks’ victims. He claims he was sexually assaulted both when Mr. Estabrooks was a police officer and when he worked at the City Works Department. In December 2013, Mr. Hayes commenced an action as a representative plaintiff, claiming damages against the City of Saint John, the Saint John Police Commission and the Saint John Police Department. The action was brought as a class action under the Class Proceedings Act , S.N.B. 2011, c. 125. Mr. Hayes then applied for an order certifying the action as a class proceeding under the Act .

He asked that the order appoint him the representative of the class, define the class, define the common issues to be determined at trial, and address some corollary issues. [ 3 ] At the hearing of the certification application, Mr. Hayes conceded he had no valid claim against the Saint John Police Commission, since that entity did not exist prior to Mr. Estabrooks’ departure from the Police Department. He also conceded the Saint John Police Department was not a legal entity that could be sued.

Thus, only the City of Saint John remained as a defendant. [ 4 ] The motion judge certified the action as a class proceeding pursuant to the Act . The judge defined the class and the common issues. In sum, the judge held Mr. Hayes’ action would proceed to determine whether the City was liable to the class members for breach of fiduciary duty, for negligence and/or vicariously for the harm Mr. Estabrooks caused to the members of the class. [ 5 ] With leave, the City appeals.

Alleging the statement of claim as amended does not disclose any cause of action, the City seeks an order setting aside the motion judge’s order certifying the action as a class proceeding. [ 6 ] For the reasons set out below, I would allow the appeal in part. I would not set aside the motion judge’s decision certifying the action as a class proceeding, although I would, as the Supreme Court of Canada did in Alberta v.

Elder Advocates of Alberta Society , 2011 SCC 24 , [2011] 2 S.C.R. 261 , strike the plea of breach of fiduciary duty, leaving untouched, without endorsing them, the claims in negligence and in vicarious liability.

II. Background [ 7 ] Kenneth Estabrooks worked as a police officer with the City of Saint John Police Force for 22 years, from 1953 to 1975. His employment with the Police Force came to an end in 1975 after a 15-year-old and a 17-year-old reported to the Saint John Police Force that Mr. Estabrooks had engaged in sexual conduct with them. Five days later, Mr. Estabrooks began working in the City of Saint John’s Public Works Department, an employment he held until his retirement in 1983. [ 8 ] In 1998, Mr.

Estabrooks was charged with sexual offences having allegedly occurred over the course of twenty-five years, up until 1982; a year later, in 1999, he was convicted on four of these charges, and was sentenced to six years in prison. [ 9 ] It is alleged Mr. Estabrooks began sexually assaulting children as early as 1953, and continued until at least 1983. In addition to the 1998 criminal trial, two separate investigations were launched. The first, also in 1998, was conducted by the Fredericton Police and examined how the Saint John Police Force had handled complaints regarding Mr. Estabrooks’ conduct.

In 2012, the City hired a third party to conduct an investigation into the totality of the allegations of abuse by Mr. Estabrooks. As of 2013, that investigation had identified seventy-nine living victims, with the youngest being seven years old at the time of the alleged assaults. [ 10 ] The investigators’ interim report was delivered to Saint John Common Council in January 2013. In December of that same year, Mr.

Hayes initiated class proceedings on behalf of “persons who were sexually assaulted by Kenneth Estabrooks and such other persons or class of persons, as [the court] recognizes or directs,” and with a period covering alleged incidents from 1953 until 1998. Initially, the defendants in the action were the City of Saint John, the Saint John Police Commission, and the Saint John Police Department. Since then, several modifications have been made, such that the action is proceeding solely against the City.

There were also several modifications made to the definition of the proposed class: once prior to the certification hearing, with the class period being modified to end in 1983 upon Mr. Estabrooks’ retirement; and the second occurring during the hearing, with the addition of the phrase “All persons who allege that they suffered injury, loss or damage.” [ 11 ] Mr. Hayes applied for various relief, including an order certifying the action as a class proceeding pursuant to the Act . The standard to be met for a class to be certified is laid out in s. 6(1) of the Act , which reads as follows:

Certification of class proceeding 6(1) The court shall certify a proceeding as a class proceeding on a motion under

section 3 or 4 if, in the opinion of the court, (

a) the pleadings disclose or the Notice of Application discloses 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, whether or not the common issue predominates over issues affecting only individual members, (

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

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

i) would fairly and adequately represent the interests of the class, (ii) has produced a plan for the class proceeding that sets out a workable method of advancing the class proceeding on behalf of the class and of notifying class members of the class proceeding, and (iii) does not have, with respect to the common issues, an interest that is in conflict with the interests of other class members. [Emphasis added.] Certification de l’instance à

titre de recours collectif 6(1) La cour saisie d’une motion visée à l’article 3 ou 4 certifie une instance à

titre de recours collectif si elle est d’avis que les conditions suivantes sont réunies :

a) les plaidoiries ou l’avis de requête révèlent une cause d’action ;

b) il existe un groupe identifiable de deux personnes ou plus;

c) les demandes des membres du groupe soulèvent une question commune, que celle-ci l’emporte ou non sur les questions touchant seulement les membres individuels;

d) le recours collectif serait la meilleure procédure pour que soit réglé de façon juste et efficace le litige;

e) il y a une personne qui cherche à être nommée comme représentant demandeur pour le groupe et qui : (

i) représenterait de façon juste et appropriée les intérêts du groupe, (ii) a présenté, pour le recours collectif, un plan proposant une méthode efficace de faire avancer le recours collectif au nom du groupe et d’aviser les membres du groupe de l’existence du recours collectif, (iii) n’a pas de conflit d’intérêts avec d’autres membres du groupe en ce qui concerne les questions communes. [C’est moi qui souligne.] [ 12 ] At the certification hearing, the question of whether or not valid causes of action had been disclosed was the most contentious. [ 13 ] In a decision dated February 9, 2017, reported at 2017 NBQB 25 , [2017] N.B.J.

No. 57 (QL) , a judge of the Court of Queen’s Bench certified the action as a class proceeding and determined the common issues for trial to be as follows:

(1) Did the Defendant owe a fiduciary duty to the Class Members to protect them from the actionable physical, mental or sexual harm

perpetrated by Kenneth Estabrooks?

(2) If the answer to (1) is “yes,” did the Defendant breach its fiduciary duty?

(3) Did the Defendant owe a duty of care to the Class Members to protect them from the actionable physical, mental or sexual harmperpetrated by Kenneth Estabrooks?

(4) If the answer to (3) is “yes,” did the Defendant breach its duty of care?

(5) Is the Defendant vicariously liable for the actionable physical, mental and/or sexual harm perpetrated by Kenneth Estabrooks?

(6) Are the Class Members entitled to an award of punitive damages based on the Defendant’s conduct? If so, in what amount? [para.96] [14] In coming to this decision, the motion judge cited both the majority (Drapeau C.J.N.B. andDeschênes, J.A.) in Gay et al. v. Regional Health Authority 7 and Dr. Menon, 2014 NBCA 10, 421 N.B.R. (2d) 1 and Chief JusticeMcLachlin in Elder Advocates as authority regarding the proper approach to certification motions. He held both to stand for the premisethat a certification hearing is not meant to consider the substantive merits of the case.

At the certification stage, the role of the judge is todetermine whether, assuming the facts as alleged in the statement of claim, the pleading discloses a supportable cause of action. A claimshould only be struck out when it is plain and obvious it cannot succeed. [15] Considering each in turn, the judge concluded the statement of claim supported three potentialcauses of action: breach of fiduciary duty, negligence, and vicarious liability. [16] Beginning with whether the necessary elements had been pled to support a claim of breach offiduciary duty, the judge applied Elder Advocates and Frame v.

Smith, (SCC), [1987] 2 S.C.R. 99, [1987] S.C.J. No. 49(QL), and answered in the affirmative. Next, the motion judge examined whether a claim in negligence had been properly pleaded. Themotion judge found the necessary elements for a claim in negligence had been alleged. Finally, the judge turned to vicarious liability.Here, the particular question of whether a city could be vicariously liable to members of the public for the behaviour of a police officerwas examined; the particular exceptions to the general rule, and whether those apply in the case at bar, were determined to be questionsof mixed fact and law.

The motion judge concluded Mr. Hayes “has, therefore, pleaded this cause of action which, in the right factualmatrix, is supportable at law” (para. 53). [17] Having found three arguable causes of action pleaded, the motion judge then proceeded toconsider whether an identifiable class with common issues had been asserted, as per ss. 6(1)(

b) and (

c) of the Class Proceedings Act. Hefound the allegations revealed rational relationships to the defined class, and to the causes of action claimed. Turning to commondamages, the motion judge held the issue of aggregate assessment of damages would be left to be determined at trial. He therefore didnot certify the question, although he did certify the issue of punitive damages as being a common issue. [18] The final hurdle to certification was determining, under s. 6(1)(

d) of the Act, whether a classaction was the appropriate way to proceed in this case. The City argued that proceeding as a class action would not considerably advancethe proceedings, as there were too many individual questions regarding the alleged incidents of assault. The motion judge rejected thisargument, noting that general questions as to the City’s liability for Mr. Estabrooks’ actions predominated over questions as to whetherindividual claims would proceed. III. Issues on Appeal [19] The City appeals the motion judge’s certification order, seeking it to be set aside.

The Cityalleges: (1) the motion judge erred in law in his application of s. 6(1) of the Act when he found that the Amended Statement of Claim

disclosed:

i) a cause of action against the City for breach of fiduciary duty; ii) a cause of action against the City for vicarious liability; and iii) a cause of action against the City for negligence. (2) the motion judge erred in law in considering evidence when making a determination under s. 6(1) of the Act. IV. Analysis A. Standard of Review [20] Before addressing the grounds of appeal, it is important to first clearly establish the applicablestandard of review. [21] The only question on appeal is whether the judge erred in determining that the statement ofclaim discloses a cause of action.

The test to determine whether a pleading sufficiently discloses a cause of action in order to be certifiedas a class proceeding is that elaborated in Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93(QL) and applied in Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, [2013] 3 S.C.R. 545, in the followingterms: Section 4(1)(

a) of the CPA requires that the pleadings disclose a cause of action. This requirement is judged on the standard of proofapplied in Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959, at p. 980, namely that a plaintiff satisfies thisrequirement unless, assuming all facts pleaded to be true, it is plain and obvious that the plaintiff’s claim cannot succeed (Alberta v.Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261 (“Alberta Elders”), at para. 20; Hollick v.

Toronto (City), 2001SCC 68, [2001] 3 S.C.R. 158, at para. 25). [para. 31] [22] Thus, the motion judge was required to subject the alleged causes of action to that test anddecide whether, assuming all facts pleaded to be true, it was plain and obvious each of Mr. Hayes’ claims would not succeed. The judgedid this. He applied the proper legal standard. He held each of the impugned causes of action had a chance of success. The question iswhether he erred in reaching those conclusions. [23] In Gay et al. v. Regional Health Authority and Dr. Menon, the majority pointed to Canada(Attorney General) v.

Anderson, 2011 NLCA 82, [2011] N.J. No. 445 (QL), and held that, while most of the criteria set out in s. 6(1) ofthe Act raise questions of mixed law and fact for which much deference is owed to the certification judge, the same is not the case for thecriterion set out in s. 6(1)(

a) requiring a cause of action to be disclosed. That particular issue “turns on determinations of law and,therefore, it is reviewed on the standard of correctness”: Anderson, at para. 38, referring to Dow Chemical Company v. Ring, Sr., 2010NLCA 20, [2010] N.J. No. 107 (QL), and Gay, at para. 48. [24] In Gay, the majority judgment addressed the proper analytical framework for determining, atthe certification stage, whether the s. 6(1)(

a) criterion is met: On a certification motion, the question is not whether the claims are likely to succeed on the merits at trial, but whether a cause of actionis formally advanced in the pleadings (see Hollick [Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158], at para. 16,and Vivendi Canada Inc. [Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 SCR 3], at para. 4). The issue under s. 6(1)(

a) ofthe Class Proceedings Act must be determined solely by reference to the pleadings as is the case on a Rule 23.01(1)(

b) motion to strike astatement of claim for failure to disclose a reasonable cause of action. The correct analytical framework is articulated in Sewell v. ING

Insurance Co. of Canada, 2007 NBCA 42, 314 N.B.R. (2d) 330: The principles that inform the determination of a defendant’s motion to strike under Rule 23.01(1)(

b) are well settled and can besummarized as follows: (1) the only question for judicial resolution is whether it is plain and obvious that the Statement of Claim fails todisclose the essential elements of a cause of action tenable at law. That conclusion should be reached only in the clearest of cases; (2)correlatively, absent exceptional circumstances, the court must accept as proved all facts asserted in the Statement of Claim and abstainfrom looking beyond the pleading itself and any documents referred to therein (see Hogan v. Doiron et al. (2001), 243 N.B.R. (2d)263, [2001] N.B.J.

No. 382 (QL), 2001 NBCA 97, para. 38 and Boisvert v. LeBlanc (2005), 294 N.B.R. (2d) 325, [2005] N.B.J. No. 561(QL), 2005 NBCA 115, para. 21). To expand the exercise beyond those limits would operate to morph the motion under Rule 23.01(1)(b)into an application for

summary judgment under Rule 22, the appropriate vehicle to determine prior to trial whether there is factual meritto a claim; (3) the Statement of Claim is to be read generously to accommodate drafting deficiencies; and (4) where a generous readingof its provisions fails to breathe life into a pleading, all suitable amendments should be allowed (see Rule 27.10(1) and LeDrew et al. v.Conception Bay South (Town) (2003), 231 Nfld. & P.E.I.R. 61, [2003] N.J.

No. 276 (QL), 2003 NLCA 56. (para. 26) [para. 52] [25] Since the determination of whether or not a pleading discloses a cause of action is a question oflaw reviewable on the correctness standard, it falls to this Court to determine whether, in applying the above-described framework,which admittedly sets a very low threshold, the motion judge was correct in holding the statement of claim disclosed a cause of action.To do so, we must subject each of the disputed claims – breach of fiduciary duty, negligence and vicarious liability – to the test. B. The alleged causes of action

(1) The Claim for Breach of Fiduciary Duty [26] The City alleges the motion judge erred in finding that a cause of action for breach of fiduciaryduty was disclosed in the amended statement of claim. The City contends the motion judge properly identified the Supreme Court’sdecision in Elder Advocates as the leading authority on point, but that he erred in his

interpretation and application of it. [27] Elder Advocates involved a proposed class action against the Province of Alberta by individualswho were residents of nursing homes and auxiliary hospitals. The claim alleged the Province had committed a number of wrongs,including a breach of fiduciary duty, by overcharging residents for housing and meal expenses.

For a unanimous court, McLachlin C.J.C.outlined the framework within which the claim had to be assessed and discussed the particular situation of fiduciary duties in thegovernment context. [28] The analysis in Elder Advocates began with a recognition that “[f]iduciary duty is a doctrineoriginating in trust,” which “requires that one party, the fiduciary, act with absolute loyalty toward another party, the beneficiary orcestui que trust, in managing the latter’s affairs” (para. 22). Drawing on the dissenting reasons of Wilson J. in Frame v. Smith, lateradopted and applied in Lac Minerals Ltd. v.

International Corona Resources Ltd., (SCC), [1989] 2 S.C.R. 574, [1989]S.C.J. No. 83 (QL), McLachlin C.J.C. noted there are some relationships that have been recognized to attract fiduciary obligations.These, she observed, according to Wilson J.: […] seem to possess three general characteristics:

(1) The fiduciary has scope for the exercise of some discretion or power.

(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.

(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. [para. 27] [29] Noting that “vulnerability alone is insufficient to support a fiduciary claim” (para. 28),

McLachlin C.J.C. continued by noting “the three ‘hallmarks’ referred to in Frame […] are not a complete code for identifying fiduciary duties” (para. 29). In order to identify the existence of a fiduciary duty in cases not covered by an existing category in which fiduciary duties have been recognized, certain other elements are required. [ 30 ] She explained that, “[f]irst, the evidence must show that the alleged fiduciary gave an undertaking of responsibility to act in the best interests of a beneficiary” noting the words of Cromwell J. in Galambos v.

Perez , 2009 SCC 48 , [2009] 3 S.C.R. 247 , that “what is required in all cases is an undertaking by the fiduciary, express or implied, to act in accordance with the duty of loyalty reposed on him or her” (para. 30, quoting para. 75 in Galambos ). On this point, McLachlin C.J.C. elaborated as follows: The existence and character of the undertaking is informed by the norms relating to the particular relationship: Galambos , at para. 77 .

The party asserting the duty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake. The undertaking may be found in the relationship between the parties, in an imposition of responsibility by statute, or under an express agreement to act as trustee of the beneficiary’s interests.

As stated in Galambos , at para. 77 : The fiduciary’s undertaking may be the result of the exercise of statutory powers, the express or implied terms of an agreement or, perhaps, simply an undertaking to act in this way. In cases of per se fiduciary relationships, this undertaking will be found in the nature of the category of relationship in issue.

The critical point is that in both per se and ad hoc fiduciary relationships, there will be some undertaking on the part of the fiduciary to act with loyalty. [paras. 31-32] [Emphasis added by McLachlin C.J.C.] [ 31 ] Per se fiduciary relationships are those that have been historically recognized “as a matter of course within the traditional categories of trustee- cestui que trust , executor-beneficiary, solicitor-client, agent-principal, director- corporation, and guardian-ward or parent-child.” On the other hand, “ ad hoc fiduciary relationships must be established on a case-by- case basis” (para. 33). [ 32 ] The second element requires the duty to “be owed to a defined person or class of persons who must be vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them,” since “[f]iduciary duties do not exist at large; they are confined to specific relationships between particular parties” (para. 33). [ 33 ] The third additional element requires one who claims the existence of a fiduciary relationship to show “that the alleged fiduciary’s power may affect the legal or substantial practical interests of the beneficiary” (para. 34).

In ad hoc situations, the claimant “must be able to point to an identifiable legal or vital practical interest that is at stake” (para. 35). [ 34 ] McLachlin C.J.C. conveniently summarized these elements as follows: In

summary, for an ad hoc fiduciary duty to arise, the claimant must show, in addition to the vulnerability arising from the relationship as described by Wilson J. in Frame : (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary’s control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control. [para. 36] [ 35 ] The Chief Justice’s analysis continued with a discussion of how these elements are applied in the governmental context.

She explained that “the special characteristics of governmental responsibilities and functions mean that governments will owe fiduciary duties only in limited and special circumstances” (para. 37). [ 36 ] While fiduciary duties of government have been found in special situations, such as in relationships between the Crown and the Aboriginal peoples of Canada, these are unique. In general, “[t]he special nature of the governmental context impacts on the requirements of a fiduciary relationship” (para. 41). In the governmental context, the following considerations apply:

• “[T]he requirement of an undertaking to act in the alleged beneficiary’s interest will typically be lacking where what is at issue is the exercise of a government power or discretion” (para. 42); • Imposing on the Crown the burden of putting first the best interest of the beneficiary “is inherently at odds with its duty to act in the best interests of society as a whole, and its obligation to spread limited resources among competing groups with equally valid claims to its assistance,” such that “situations where it is shown [the Crown] owe[s] a duty of loyalty to a particular person or group will be rare” (para. 44); • “Generally speaking, a strong correspondence with one of the traditional categories of fiduciary relationship – trustee- cestui que trust , executor-beneficiary, solicitor-client, agent-principal, director-corporation, and guardian-ward or parent-child – is a precondition to finding an implied fiduciary duty on the government” (para. 47); • “[…] a general obligation to the public or sectors of the public cannot meet the requirement of an undertaking” (para. 48); • Other than in cases “where the government duty is in effect a private duty being carried out by government” it is difficult to posit “a specific class of persons to whom the government owes an exclusive duty of loyalty” because, as a general rule, the government must act in the interest of all citizens (para. 49); • “No fiduciary duty is owed to the public as a whole, and generally an individual determination is required to establish that the fiduciary duty is owed to a particular person or group” (para. 50); • “It is not enough that the alleged fiduciary’s acts impact generally on a person’s well-being, property or security.

The interest affected must be a specific private law interest to which the person has a pre-existing distinct and complete legal entitlement. Examples of sufficient interests include property rights, interests akin to property rights, and the type of fundamental human or personal interest that is implicated when the state assumes guardianship of a child or incompetent person” (para. 51). [ 37 ] As stated above, in the present case, the motion judge recognized the factors set out in Elder Advocates .

In his view, the first three of these – those established in Frame – were clearly addressed in the amended statement of claim in which it was alleged that Mr. Estabrooks’ power, authority and fiduciary duty over the Plaintiff and the class members were created and encouraged by the City; and that the sexual assaults and batteries were caused by the breach of fiduciary duty of the City, by placing Mr. Hayes and the class members under Mr. Estabrooks’ authority and control.

As for the requirement that the fiduciary must have undertaken to act in the best interests of the alleged beneficiaries, the motion judge noted the undertaking may be implied by the relationship between the parties, noted the categories of fiduciaries are not closed, and opined “the court could find a correspondence to a traditional category of fiduciary relationship such as guardian-ward in the circumstances of this case.” He therefore concluded it was “not plain and obvious that the court will not imply an undertaking by the City to act in the best interests of the Plaintiff and the Class Members” (para. 33). [ 38 ] With great respect, I find error in the motion judge’s reasoning and conclusion on this point.

In order to disclose a cause of action for breach of fiduciary duty, the statement of claim would have to allege a specific undertaking by the City to act in the best interests of Mr. Hayes and the class members. It alleges no such thing. In paragraph 27 of the amended statement of claim, it is alleged the Saint John Police Department and the Police Commission “as representatives of the justice system owed a fiduciary duty to” Mr. Hayes and the class members.

Even if this could be said to claim the specific undertaking required to establish a fiduciary duty, the allegation understandably is not made against the City, for it would be difficult to claim the City is a representative of the justice system. In paragraph 28, Mr. Hayes alleges Estabrooks owed him and the others a fiduciary duty and claims this was created and encouraged by the City. Here again, this provides no basis upon which one can find an allegation of a specific undertaking on behalf of the City to act in the best interests of Mr.

Hayes and the class members. [ 39 ] While the amended statement of claim alleges Mr. Hayes and the class members “were particularly vulnerable and at the mercy of the City,” this allegation does not allege the requisite specific undertaking to found a cause of action for breach of fiduciary duty. [ 40 ] Admittedly, the amended statement of claim alleges the City put its interests ahead of the interests of both Mr.

Hayes and the class members; however, this allegation of a breach provides no basis upon which a duty can be found. [ 41 ] In addition to the failure to disclose the requisite undertaking, the amended statement of claim fails to disclose a defined person or class of persons to whom such an undertaking would have been given. It claims Mr. Hayes and the class members were vulnerable because of their age, but does not identify a particular person or group to whom the City would have given an undertaking to act in that person or group’s best interest.

[42] Recall that in order to be successful, a claim for breach of fiduciary duty must affect a“specific private law interest to which the person has a pre-existing distinct and complete legal entitlement.” “It is not enough that thealleged fiduciary’s acts impact generally on a person’s well-being, property or security” (para. 51 of Elder Advocates). The amendedstatement of claim discloses no pre-existing private law interest that was affected. At its core, the claim is for damages resulting frominjury to their well-being or their security.

The allegations contained in the amended statement of claim are therefore insufficient tosatisfy the third of the requisite elements to which the Chief Justice referred in paragraphs 34 and 51 of Elder Advocates. [43] In sum, I am unable to find in the amended statement of claim sufficient allegations which, iftrue, would enable a court, applying the principles set out in Elder Advocates, to conclude the City had undertaken a fiduciary obligationtoward a particular individual or class of persons.

In my view, the allegations to which the judge referred – assumed to be true – wouldnot give rise to a fiduciary duty upon the City since these neither disclose a specific undertaking, nor identify a defined person or class towhich such an undertaking would have been given, nor do they disclose a pre-existing private law interest that was affected beyondgeneral well-being and security. [44] I do not agree with the motion judge that the amended statement of claim discloses sufficientfacts upon which an undertaking could be implied and where a court could “find a correspondence to a traditional category of fiduciaryrelationship such as guardian-ward” (para. 33).

There is no similarity between the broad duty Mr. Hayes and the class members wish tosee conferred upon the City and the fiduciary relationship between a guardian-ward. In Callan v. Cooke, 2012 BCSC 1589, [2012] B.C.J.No. 2220 (QL), a case which also involved allegations of sexual abuse of a minor by a police officer, the British Columbia SupremeCourt considered whether to strike, inter alia, a claim for breach of fiduciary duties on the part of the RCMP.

Arnold-Bailey J. positedthat, while the nature of the RCMP’s duties to the public at-large meant that a fiduciary duty in favour of the plaintiff could not beestablished, a guardian-juvenile relationship may have existed while the plaintiff was a participant in the “ride along” program, althoughthe necessary facts to establish such a duty had not been pleaded. This is not the situation in the present case.

In essence, what theamended statement of claim alleges are duties that might create liability in tort, but not duties of the kind necessary to found fiduciaryobligations. [45] In Elder Advocates, McLachlin C.J.C. states, at paragraph 54, that, even if the categories offiduciary duty are not closed, hopeless claims should not be allowed to proceed to trial. In my view, on careful examination of theallegations contained in the amended statement of claim, and presuming the facts pleaded therein to be true, it is plain and obvious theclaim for breach of fiduciary duty cannot succeed.

(2) Vicarious Liability [46] In coming to a conclusion on this ground of appeal, I apply some of the other principles DrapeauC.J.N.B. elaborated in Sewell v. ING Insurance Co. of Canada, 2007 NBCA 42, 314 N.B.R. (2d) 330, and which the majority repeated inGay.

First, a conclusion that it is plain and obvious that a statement of claim fails to disclose the essential elements of a cause of actiontenable at law is one that “should be reached only in the clearest of cases”; second, when subjected to a test, a statement of claim must“be read generously to accommodate drafting deficiencies” (para. 26 of Sewell). [47] The motion judge, in finding the amended statement of claim disclosed a cause of actionfounded on vicarious liability, acknowledged the test set out in Bazley v. Curry, (SCC), [1999] 2 S.C.R. 534, [1999]S.C.J.

No. 35 (QL), pursuant to which “the test for vicarious liability for an employee’s sexual abuse of a client should focus on whetherthe employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm”(para. 46).

He found, however, that Bazley was of questionable application in the present case because of certain common law casesstanding for the proposition that police officers are not servants or employees of the municipality. [48] Justice McLachlin, as she then was, enumerated in Bazley a list of factors to be considered inclaims of vicarious liability for sexual assaults committed by employees.

Several of these are pertinent to this case: Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an employer isvicariously liable for an employee’s unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guidedby the following principles: […]

(2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify theimposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creationor enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicariousliability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to theemployment enterprise, like time and place (without more), will not suffice.

Once engaged in a particular business, it is fair that anemployer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the riskwould effectively make the employer an involuntary insurer.

(3) In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrongcomplained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, therelevant factors may include, but are not limited to, the following: (

a) the opportunity that the enterprise afforded the employee to abuse his or her power; […] (

c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise; (

d) the extent of power conferred on the employee in relation to the victim; (

e) the vulnerability of potential victims to wrongful exercise of the employee’s power. [para. 41] [49] The amended statement of claim alleges Mr. Estabrooks was an employee of the City both whenhe was a member of the police force and when he worked at Saint John City Works. It alleges Mr. Estabrooks used his position ofauthority, power and trust, both as a police officer and as a city employee, to commit the alleged wrongs. It claims the City gave Mr.Estabrooks the opportunity to abuse his powers over Mr. Hayes and the class members by placing him in such a position.

The City isalleged to have nurtured, created and fostered the risk that led to the sexual abuse. [50] In sum, the claim alleges Mr. Estabrooks’ tortious acts were directly attributable to hisemployment position and the authority conferred on him as a police officer and later as an employee of City Works. When taken aspleaded, these facts map clearly onto the analysis provided by the Supreme Court in Bazley. Mr. Estabrooks was allegedly afforded theopportunity to commit the alleged wrongs by virtue of his job’s duties and authority.

As a police officer able to arrest, search, and detainchildren as alleged in the statement of claim, Mr. Estabrooks would have been in a position of considerable power in relation to theplaintiffs who, in turn, would have been particularly vulnerable to any alleged wrongful exercise of said power. The same is trueregarding Mr. Estabrooks as a City Works Department supervisor vis-à-vis subordinate employees. [51] The claim is sufficiently laid out.

Thus, any basis for rejecting it would have to be found in thelaw, such as if, as the City contends, there was a categorical rejection of vicarious liability in claims involving police officers. In myview, there is no such categorical rejection. There are cases where vicarious liability had been applied in matters involving a policeofficer. Evans v. Sproule, (ON SC), [2008] O.J. No. 4518 (S.C.)(QL), is one of these.

In that case, liability wasvicariously established for a sexual assault committed by a police officer on the basis the Toronto Police Services Board had encouragedan environment of trust and obedience in the public, which facilitated the commission of the tort.

Admittedly, in Evans, unlike in thepresent case, there was a statutory provision that held the chief of police liable in respect of torts committed by members of the force;however, the basis for the judge’s finding was “both under the statute and the common law” (para. 100). [52] The motion judge noted “the common law admits of some exceptions in regard to the status ofpolice officers vis-à-vis a municipality” and also the acts alleged “were not of an investigatory nature” (para. 51).

He referred to variousacts and regulations the parties had filed in evidence on the motion for certification which suggest some degree of control by the Cityover police officers during the time period in question. After reviewing these, the judge held “that this is an issue of mixed law and factwhich can best be decided on the basis of a full evidentiary record and which should not be decided in a certification motion” (para. 52). [53] In particular, the judge raised the case of R. v. Campbell, (SCC), [1999] 1S.C.R. 565, [1999] S.C.J.

No. 16 (QL), in which it was held that “a police officer investigating a crime is not acting as a government

functionary or as an agent of anybody” (para. 27). The facts in Campbell were considerably different than those before us. Campbell involved a so-called “reverse sting operation” in which members of the RCMP sold narcotics to alleged traffickers. Defence counsel raised questions of the legality of the RCMP’s conduct, prompting a consideration of whether RCMP investigations fell within the purview of Crown immunity.

The judge noted that the Supreme Court had acknowledged it was “possible that in one or other of its roles the RCMP could be acting in an agency relationship with the Crown” (para. 29). [ 54 ] Campbell , on which the City relies in support of its proposition that there can be no vicarious liability for the acts of a police officer, is not unequivocal. The matter involved an application for a stay of proceedings grounded on police misconduct in the investigation of a crime. The statement upon which the City relies was made in the context of ruling that public interest immunity should not apply to the RCMP.

While Binnie J., for the Court, did state that “[a] police officer investigating a crime is not acting as a government functionary or as an agent of anybody” (para. 27), he made it clear he was “concerned only with the status of an RCMP officer in the course of a criminal investigation.” [ 55 ] Although there are unquestionably strong arguments supporting the City’s position, and although it may be that, in the end, after a full debate within the context of the factual matrix of this case, a court could conclude the common law in New Brunswick does not extend vicarious liability to a municipality for the acts of a police officer, it cannot be said the issue is resolved in this province.

In LeBlanc v. Boisvert , 2005 NBCA 115 , 294 N.B.R. (2d) 325 , Drapeau C.J.N.B. observed that Rule 23.01(1)(a) “is unsuited for the resolution of unsettled, complex and difficult questions [...]” (para. 35). In my view, this is such a case. Thus, I conclude the motion judge did not err in holding that it was not plain and obvious the claim was doomed to fail. [ 56 ] Under this heading, the City also submits the amended statement of claim does not sufficiently set out a claim for vicarious liability for the period during which Mr. Estabrooks was employed with the City Works Department. I do not agree.

The pleading alleges Mr. Estabrooks used his authority as a city employee to abduct, confine and sexually assault children and minors. It also alleges that, at all material times, the City nurtured, created and fostered the risk that enabled Mr. Estabrooks to abuse children. In E.B. v.

Order of the Oblates of Mary Immaculate in the Province of British Columbia , 2005 SCC 60 , [2005] 3 S.C.R. 45 , the Court observed that the imposition of vicarious liability for a sexual assault committed by an employee requires “a strong connection between what the employer was asking the employee to do (the risk created by the employer’s enterprise) and the wrongful act” (para. 2). Reading the statement of claim generously, I conclude it is not plain and obvious the claim will fail.

It is true that the pleading does not contain specifics in terms of material facts on some of the criteria set out in E.B. , but it cannot be said that the claim for vicarious liability is not sufficiently set out.

It will be for the evidence at trial to establish whether this claim is made out. [ 57 ] The City alleges the motion judge erred by referring to evidence presented at the hearing when what he was called upon to do was determine whether a viable claim for vicarious liability was made out in the amended statement of claim. [ 58 ] In the extract from Gay cited above, the majority held the same principles that inform a motion to strike a pleading apply when determining, on a certification motion, whether a cause of action is formally advanced in the pleadings.

Drawing from Sewell , the majority reiterated that one of these principles is that, “absent exceptional circumstances, the court must accept as proved all facts asserted in the Statement of Claim and abstain from looking beyond the pleading itself and any documents referred to therein” (para. 52). [ 59 ] In the present case, the documents to which the judge referred were not referred to in the amended statement of claim. Those documents consisted of the Rules and Regulations for the Saint John Police Force. As Mr.

Hayes points out, these are part of the historical legislation governing the relationship between the City of Saint John and its police force. In my view, while the documents were not referred to in the amended statement of claim, the judge was nevertheless justified in considering them on the basis of the exceptional circumstances to which Sewell refers. The documents simply revealed the regulatory framework in place at the time in question.

In any event, it was not technically necessary for the judge to have resorted to those documents, since, in my view, the amended statement of claim sufficiently alleged the necessary facts upon which the judge relied.

(3) Negligence [ 60 ] Regarding the claim in negligence, the motion judge referred to Mustapha v. Culligan of Canada , 2008 SCC 27 , [2008] 2 S.C.R. 114 , as detailing the elements necessary to make out the claim. In that case, McLachlin C.J.C. provided a helpfully succinct overview of the necessary elements stemming from a long line of jurisprudence:

A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach. [para. 3] [ 61 ] The City asserts these necessary elements of a claim in negligence have not been laid out; more specifically, it argues the amended statement of claim does not disclose a sufficient proximity between the City and Mr. Hayes or members of the class to create a duty of care. Mr.

Hayes, for his part, maintains that a duty of care did exist, and in particular leans on the assertion that the City had knowledge of Mr. Estabrooks’ conduct, upon which it did not act. [ 62 ] The motion judge disposed of the matter in these words: The plaintiff has alleged in paragraph 38 of the statement of claim that there was a relationship of sufficient proximity between the plaintiff and the class, on the one hand, and the City, on the other, to create a duty of care. In my view the question of proximity is one of fact to be determined by the trial judge.

This motion is restricted to whether or not the pleadings disclose a reasonable cause of action. [para. 39] [ 63 ] I find no error in that statement. The motion judge considered the amended statement of claim and, reading it generously, he found all the elements of negligence had been alleged. [ 64 ] Both parties rely on Odhavji Estate v. Woodhouse , 2003 SCC 69 , [2003] 3 S.C.R. 263 , each asserting that the principles established by the Supreme Court in that case support their argument.

Odhavji stemmed from the officer- involved shooting death of a civilian, and the subsequent Special Investigations Unit (SIU) investigation into the circumstances surrounding it. Amongst the actions brought in Odhavji were a set of claims in negligence against the Metropolitan Toronto Chief of Police, the Metropolitan Toronto Police Services Board, and the Province of Ontario.

Similarly to the case at bar, the question of whether there existed a duty of care was a key issue in Odhavji . [ 65 ] Odhavji does not stand for the proposition that the Police Services Board or the Province of Ontario could not ever be liable in negligence to someone harmed by a police officer. It rather holds that, in the allegations as pleaded in that case, the relationship between the plaintiffs and the Board and the Province was not such that a duty could be imposed. The situation is not the same in the present case. The amended statement of claim essentially alleges the City knew Mr.

Estabrooks was abusing children and yet did nothing to stop him from using his authority as a police officer to effect the assaults or to prevent him from having opportunities of doing the same while an employee of the City Works Department: 31. The City […] and social workers employed by the City received complaints about Estabrooks’ sexual abuse and failed to investigate and/or act on such complaints. 32. The City […] kept the complaints against Estabrooks secret and failed to warn and protect children within the City including the Class Members that Estabrooks was [a] dangerous sexual predator. 33.

The City […] knew or ought to have known that Estabrooks had a history of sexual assault, and knew or ought to have known that Estabrooks posed a real risk of sexually assaulting the Plaintiff, the Class members and other children within the City. 34. The Plaintiff states that for decades the City […] knew or ought to have known that Estabrooks was a sexual predator and ignored or concealed or was willfully blind to the fact that Estabrooks was a danger to the children in the City. 38.

The City […] were in a relationship of proximity with the Plaintiff and the Class by virtue of the Class’ discrete and limited scope. Finally, proximity arose from the City […’s] knowledge of Estabrooks’ sexual abuse and their failure to investigate and act on such complaints.

[ 66 ] As was noted above, at the certification stage it is not necessary for a plaintiff class to establish that their case will succeed at trial, but rather that there is no reason that it cannot succeed based solely on the pleadings. Mr. Hayes has asserted that a duty of care towards the class members was created by the City’s knowledge of Estabrooks’ conduct.

In my view, it cannot be said that, in light of the allegations contained in the amended statement of claim, it is plain and obvious that such a duty did not exist. [ 67 ] In the end, I conclude it is not plainly obvious that a claim in negligence is destined to fail on the facts as pleaded. V. Conclusion [ 68 ] As McLachlin C.J.C. pointed out in Elder Advocates , “[t]his is not a decision on the merits of the action, but on whether the causes of action pleaded are supportable at law” (para. 4).

Assuming the facts pleaded to be true, I conclude the motion judge did not err in finding the statement of claim discloses a supportable cause of action in negligence or for vicarious liability. However, I also conclude that the plea of breach of fiduciary duty discloses no cause of action and should be struck out. In the end, the order certifying the action as a class proceeding under the Act should be upheld, but the order should be varied by striking out those portions of the order that refer to fiduciary duty. VI. Disposition [ 69 ] For these reasons, I would allow the appeal in part.

I would uphold the order certifying the action as a class proceeding pursuant to the Act , but vary the order to remove items 5a and 5b, which relate to an alleged fiduciary duty, from the list of common issues. Because success on the appeal is divided, I would not make any order of costs. Version française de la décision de la Cour rendue par LE JUGE RICHARD I. Introduction [1] Délinquant sexuel condamné, Kenneth Estabrooks est aujourd’hui décédé. De 1953 à 1975, M. Estabrooks était policier au Service de police de Saint John.

Il est avancé qu’il a profité de la situation qu’il occupait, durant cette période, pour se livrer à des agressions sexuelles sur un certain nombre de personnes. En 1975, le Service de police a été informé de la conduite d’ordre sexuel que Kenneth Estabrooks avait eue avec deux garçons. M. Estabrooks a été muté au Service des travaux publics de Saint John et il y est demeuré jusqu’à sa retraite, en décembre 1983. Tandis qu’il était employé par ce service, les agressions sexuelles se seraient poursuivies. En 1998, M. Estabrooks a été accusé de crimes sexuels commis entre 1957 et 1982.

L’année suivante, il a été déclaré coupable des crimes que lui imputaient quatre des six chefs d’accusation et il a été condamné à six ans d’emprisonnement. [2] Robert Hayes soutient qu’il est l’une des victimes de M. Estabrooks. Il affirme avoir subi des

agressions sexuelles à la fois lorsque M. Estabrooks était policier et lorsqu’il était un employé du Service des travaux publics. En décembre 2013, M. Hayes, en qualité de représentant demandeur, a introduit une action en dommages-intérêts contre The City of Saint John, la Saint John Police Commission et le Service de police de Saint John. L’action était introduite en vertu de la

Loi sur les recours collectifs , L.N.-B. 2011, ch. 125. M. Hayes a ensuite demandé une ordonnance certifiant l’action à

titre de recours collectif sous le régime de la Loi . Il sollicitait une ordonnance qui le nommerait représentant du groupe, définirait le groupe, définirait les questions communes à trancher au procès et statuerait sur des questions accessoires. [3] Lors de l’audition de la demande de certification, M. Hayes a concédé que le recours était irrecevable à l’encontre de la Saint John Police Commission, puisqu’elle n’existait pas avant le départ de M. Estabrooks du Service de police. Il a concédé aussi que le Service de police de Saint John n’était pas une entité juridique qui pouvait être poursuivie. Seule The City of Saint John, donc, demeurait

partie défenderesse. [4] Le juge saisi de la motion a certifié l’action à

titre de recours collectif en vertu de la Loi . Il a défini le groupe et les questions communes. En somme, il a conclu que l’action engagée par M. Hayes serait entendue en vue de déterminer si The City of Saint John (« la Ville ») avait, envers les membres du groupe, une responsabilité pour manquement à une obligation fiduciaire, pour négligence ou, du fait d’autrui, pour les préjudices causés aux membres du groupe par M. Estabrooks. [5] La Ville a obtenu l’autorisation d’en appeler. Elle soutient que l’exposé de la demande modifié ne révèle aucune cause d’action et prie notre Cour d’annuler l’ordonnance du juge saisi de la motion certifiant l’action à

titre de recours collectif. [6] Pour les motifs exposés ci-dessous, je suis d’avis d’accueillir l’appel en partie. Je suis d’avis de ne pas annuler la décision du juge saisi de la motion de certifier l’action à

titre de recours collectif, mais, ainsi que l’a fait la Cour suprême du Canada dans Alberta c. Elder Advocates of Alberta Society , 2011 CSC 24 , [2011] 2 R.C.S. 261 , je radierais l’allégation de manquement à une obligation fiduciaire et, sans les approuver, laisserais telles quelles les allégations de négligence et de responsabilité du fait d’autrui. II. Contexte [7] Kenneth Estabrooks a été policier au corps de police de Saint John de 1953 à 1975, donc vingt- deux ans.

Son emploi au corps de police de Saint John a pris fin en 1975, après que deux jeunes personnes, âgées de quinze ans et de dix- sept ans, ont signalé au corps de police que M. Estabrooks s’était livré à une conduite d’ordre sexuel avec elles. Cinq jours plus tard, M. Estabrooks entrait au Service des travaux publics de Saint John, où il est demeuré jusqu’à sa retraite en 1983. [8] En 1998, M.

Estabrooks a été accusé d’infractions sexuelles qui auraient été perpétrées au cours d’une période de vingt-cinq ans, soit jusqu’en 1982; un an plus tard, en 1999, il a été déclaré coupable de quatre des infractions dont il était accusé et condamné à six ans de prison. [9] Il est avancé que M. Estabrooks a commencé à se livrer à des agressions sexuelles sur des enfants dès 1953 et qu’il a continué à s’y livrer jusqu’en 1983 au moins. Outre la poursuite criminelle engagée en 1998, deux enquêtes distinctes ont été lancées.

La première, lancée en 1998 également et menée par la police de Fredericton, a étudié la façon dont le corps de police de Saint John avait traité les plaintes relatives à la conduite de M. Estabrooks. En 2012, la Ville a commandé une enquête indépendante sur la totalité des allégations imputant des mauvais traitements à M. Estabrooks. En 2013, cette enquête avait recensé soixante-dix-neuf victimes toujours vivantes, dont la plus jeune avait sept ans à l’époque des agressions reprochées à M. Estabrooks. [10] Le rapport provisoire des enquêteurs a été remis au conseil communal de Saint John en janvier 2013.

En décembre, cette année-là, M. Hayes a intenté un recours collectif au nom [TRADUCTION] « des personnes ayant subi des agressions sexuelles de la part de Kenneth Estabrooks et des autres personnes ou groupes de personnes que [la Cour] reconnaîtra, ou dont elle ordonnera la représentation »; le recours englobait les cas survenus de 1953 à 1998. Les parties défenderesses étaient, à l’origine, The City of Saint John, la Saint John Police Commission et le Service de police de Saint John. Par la suite, plusieurs modifications ont apportées, de sorte que l’action n’est plus exercée que contre The City of Saint John.

De même, des modifications ont été apportées à la définition du groupe proposé : une première fois avant l’audience de certification par modification de la période visée, qui prenait fin désormais en 1983, à la retraite de M. Estabrooks; une seconde fois au cours de l’audience, par ajout des mots [TRADUCTION] « toutes les personnes qui allèguent avoir subi un préjudice, une perte ou des dommages ».

[11] M. Hayes demandait diverses mesures de redressement, dont une ordonnance certifiant l’action à

titre de recours collectif sous le régime de la Loi . La norme à laquelle il faut satisfaire pour qu’une instance soit certifiée est énoncée au par. 6(1) de la Loi , dont le texte suit : Certification of class proceeding 6(1) The court shall certify a proceeding as a class proceeding on a motion under