2023 NBCA 79, 2023 NBCA 79

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 106-22-CA ROBERT HAYES, on behalf of himself and other class members APPELLANT ROBERT HAYES, en son nom personnel et au nom d’autres membres du groupe, APPELANT - and - - et - THE CITY OF SAINT JOHN, a body corporate by Royal Charter, confirmed and amended by Acts of the Legislative Assembly of the Province of New Brunswick RESPONDENT THE CITY OF SAINT JOHN, corps constitué par charte royale promulguée et modifiée par des lois de l’Assemblée législative de la province du Nouveau- Brunswick, INTIMÉE . Hayes v.

The City of Saint John (#3), 2023 NBCA 79 Hayes c.

The City of Saint John (n o 3), 2023 NBCA 79 CORAM: The Honourable Justice Drapeau The Honourable Justice Quigg The Honourable Justice LeBlond CORAM : l’honorable juge Drapeau l’honorable juge Quigg l’honorable juge LeBlond Appeal from a decision of the Court of King’s Bench: September 28, 2022 Appel d’une décision de la Cour du Banc du Roi : le 28 septembre 2022 History of Case: Historique de la cause : Decision under appeal: 2022 NBKB 184 Décision frappée d’appel : 2022 NBBR 184 Preliminary or incidental proceedings: 2023 NBCA 66 (#2) 2023 NBKB 40 2018 NBCA 51 (#1) Procédures préliminaires ou accessoires : 2023 NBCA 66 (n o 2) 2023 NBBR 40 2018 NBCA 51 (n o 1) Appeal heard: June 29, 2023 Appel entendu : Le 29 juin 2023

Judgment rendered: September 14, 2023 Jugement rendu : le 14 septembre 2023 Reasons for judgment by: The Honourable Justice Drapeau Motifs de jugement : l’honorable juge Drapeau Concurred in by: The Honourable Justice Quigg The Honourable Justice LeBlond Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge LeBlond Counsel at hearing: For the appellant: Celeste Poltak, Adam Tanel, Elie Waitzer and John A. McKiggan, K.C. For the respondent: Michael D. Brenton, K.C. and Emilie S. Jerome Avocats à l’audience : Pour l’appelant : Celeste Poltak, Adam Tanel, Elie Waitzer et John A. McKiggan, c.r. Pour l’intimée : Michael D. Brenton, c.r., et Emilie S. Jerome

THE COURT The appeal by Robert Hayes and other claimants in the underlying class action takes issue with the determination by the common issues judge that The City of Saint John is not vicariously liable for their sexual abuse by a member of its police force during his working hours. That decision is set aside, with the issue of costs to be addressed later.

The judge committed reversible error in finding the police officer was not an employee of the City when he perpetrated, during working hours, the sexual abuse in question and that the “strong connection” between job functions and wrongdoing required to justify the imposition of vicarious liability was not established.

The City’s cross-appeal against the finding of vicarious liability for the sexual assaults committed by the member in question after his transfer to the City Works Department has been adjourned, pending a decision by the common issues judge with respect to the defence based on the Workers’ Compensation Act , R.S.N.B. 1973, c. W-13 . On September 28, 2023, at 2:00 p.m., the Court will hear the parties with respect to the limitations defence.

LA COUR L’appelant Robert Hayes et d’autres demandeurs dans le recours collectif sous-jacent contestent en appel la conclusion tirée par le juge saisi des questions communes selon laquelle The City of Saint John n’est pas responsable du fait d’autrui pour les agressions sexuelles commises contre eux par un membre de son corps de police pendant ses heures de travail. Cette décision est annulée et la question des dépens sera abordée plus tard.

Le juge a commis une erreur justifiant l’infirmation de sa décision lorsqu’il a conclu que le policier n’était pas un employé municipal quand il a commis, pendant ses heures de travail, les agressions sexuelles en cause et que le « lien solide » entre les fonctions professionnelles du policier et les actes fautifs, qui était requis pour justifier que la Cour impose la responsabilité du fait d’autrui, n’avait pas été établi.

L’appel reconventionnel interjeté par la Ville contre la conclusion de responsabilité du fait d’autrui pour les agressions sexuelles commises par le membre en cause après qu’il eut été muté au Service des travaux publics a été ajourné jusqu’à ce que le juge saisi des questions communes rende une décision sur le moyen de défense fondé sur la Loi sur les accidents du travail , L.R.N.-B. 1973, ch. W- 13. Le 28 septembre 2023, à 14h., la Cour entendra les parties au sujet du moyen de défense fondé sur la prescription. The judgment of the Court was delivered by DRAPEAU, J.A. I.

Introduction and Overview [ 1 ] On numerous occasions during his long career as a member of the City of Saint John police force, Kenneth Estabrooks used the power and status of his job to sexually abuse vulnerable and impressionable children, including the appellant, Robert Hayes. When Estabrooks initiated the abuse, which was often at the most repugnant end of the spectrum, he was wearing a City-issued police uniform and badge, and in control of a City patrol car, his City-issued handgun almost invariably visible and always within reach.

In 1975, a Police Department investigation of complaints by two teenage boys confirmed recent sexual “improprieties” on Estabrooks’ part, during working hours as a police officer. As a result, Estabrooks was transferred to the City Works Department to work as a labourer. In relatively short order, he sexually assaulted co-workers, including Mr. Hayes who, by then, had reached the age of majority. [ 2 ] In 2013, Mr.

Hayes commenced an action in damages against the City, on the basis of its direct and vicarious liability for Estabrooks’ sexual abuse while with the Police Department (1953-1975) and the Works Department (1975- 1983). The action was subsequently certified under the Class Proceedings Act , R.S.N.B. 2011, c. 125 , and the City ’s negligence and vicarious liability for the sexual abuse Estabrooks committed during working hours as a member of its police force became common

issues. However, at the opening of trial, the claim in negligence for the Police Department period was abandoned. As a result, the claimfor that period is grounded exclusively on vicarious liability, a theory the judge rejected because of his view that police officers hired bya municipality are not, as a matter of law, its employees, and the close connection required by Bazley v. Curry, (SCC),[1999] 2 S.C.R. 534, [1999] S.C.J. No. 35 (QL) for the imposition of vicarious liability had not been established: Hayes v. City of SaintJohn, 2022 NBKB 184.

I hasten to underscore, purely for emphasis and perhaps unnecessarily, that, although the sexual abuse inquestion occurred during Estabrooks’ working hours as a member of the City police force, it was not “done under and by virtue of” anyAct of the Legislature or Parliament and, as a result, he could not claim, let alone benefit from any immunity from civil liability pursuantto the Protection of Persons Acting under Statute Act, R.S.N.B. 1973, c. P-20: Boucher v. Milner (1997), (NB CA),194 N.B.R. (2d) 59, [1997] N.B.J.

No. 487 (QL) (C.A.), paras. 10-11. [3] The overarching substantive issue on appeal is whether the judge committed reversible error infinding the City was not vicariously liable for the harm caused by Estabrooks’ sexual abuse of the claimants, during working hours as apolice officer.

In a nutshell, the complaint driving the appeal is that this finding is the product of: (1) a misunderstanding of the judicialprecedents relied upon to find Estabrooks was not a City employee; and (2) a failure to properly apply the common law test for vicariousliability in circumstances where children were sexually abused during the officer’s working hours, and the abuse was enabled by his job-created authority. For the reasons that follow, I am of the respectful view the complaint is well founded.

Accordingly, I would allow theappeal, set aside the decision under appeal, and answer affirmatively the only certified common question under consideration: “Is theCity vicariously liable for the actionable physical, mental, and/or sexual harm perpetrated by Kenneth Estabrooks […] between 1953 and1975 when he was a police officer?” II. Context [4] On March 20, 1953, Kenneth Estabrooks became a member of the City police force. Heresigned on October 29, 1975. At various times between those dates, he sexually abused numerous boys and girls, some on multipleoccasions.

As of 2013, seventy-nine living victims had been identified, with the youngest being seven years old at the time ofEstabrooks’ assault: The City of Saint John v. Hayes (#1), 2018 NBCA 51, [2018] N.B.J. No. 206 (QL), at para. 9, per Richard, C.J.N.B.,for the Court, leave to appeal refused, [2018] S.C.C.A. No. 415 (QL). Apparently, no one in a position to help these children was awareof this serial sexual abuse. [5] In the fall of 1975, two of Estabrooks’ victims, both teenage boys, complained to the CityPolice Department. The ensuing investigation confirmed the allegations of sexual abuse fuelling the complaints.

When confronted,Estabrooks admitted the allegations. The power imbalance between on the one hand, this six-foot tall 200-pound police officer in fulluniform and, on the other, the teenage complainants, weighs heavily against taking seriously any suggestion they consented to the sexualacts. [6] However, Estabrooks was not charged with any criminal offence, nor was he dismissed.Rather, Estabrooks was allowed to resign and was transferred to the City Works Department, purportedly to save his pension. Heeventually became a sub-foreman at the Works Department and sexually assaulted underlings, including Mr.

Hayes. [7] Throughout his 22-year career as a member of its police force, the City dealt with Estabrooksas an employee, albeit without asserting any authority over the manner of his execution of law enforcement functions, and he invariablyreferred to the City as his employer. [8] Estabrooks retired from employment with the City in 1983.

In 1984, he was presented with anHonour Certificate signed by the Mayor and the Common Clerk for his faithful service over the previous 25 years, a timespan thatincluded most of his career as a municipal police officer. [9] In 1999, Estabrooks was charged with four counts of indecent assault against different malepersons, one charge of indecent assault against a female person and one charge of anal intercourse with a male person. It was alleged theoffences occurred during the Police Department period (1953-1975).

Estabrooks was convicted on four counts of indecent assault, andsentenced to six years in the penitentiary, where he died in 2005. In his reasons for sentence, the judge explained Estabrooks would actas a “friendly police officer” to lure disadvantaged children into his police cruiser and sexually abuse them. [10] As noted, by 2013, seventy-nine living victims had been identified. Several testified at the trialof the common issues.

It was their evidence, which was not shaken by cross-examination, that the sexual abuse took place in a Citypolice car, while Estabrooks was in uniform, and that they got into the vehicle, obeyed his commands and did not promptly report the

sexual abuse because of his status as a police officer. [ 11 ] In December 2013, Mr. Hayes, as a representative plaintiff, commenced the underlying action against the City of Saint John, the Saint John Police Commission, and the Saint John Police Department. The actions against the Police Commission and the Police Department were eventually discontinued as the former did not exist at any relevant time, and the latter was not a legal entity.

In the result, the City stands as the sole defendant. [ 12 ] The action having been certified as a class proceeding under the Class Proceedings Act , a judge of the Court of King’s Bench certified some common issues. The only certified common issue relevant to this appeal is whether the City is vicariously liable for the sexual abuse perpetrated and, the related harm caused, by Estabrooks between 1953 and 1975 during working hours as a member of the City police force. The judge determined it was not.

He did so after concluding that, as a matter of law, Estabrooks was not a City employee at the time, and the connection between the City and Estabrooks’ wrongdoing was not sufficiently close to justify a finding of vicarious liability. [ 13 ] Mr. Hayes, on behalf of himself and all other class members, appeals, contending the trial judge committed reversible error in determining:

(1) Estabrooks was not a City employee when he engaged in the sexual abuse; (2) the strong connection required to justify the imposition of vicarious liability did not exist; (3) the sexual abuse was not a materialization of a risk created by the City because it was not “authorized or encouraged” by the City; (4) s. 17 of the Police Act , S.N.B. 1977, c.

P-9.2 . forecloses a finding of vicarious liability; and (5) prior to the enactment of s. 17 , the common law excluded liability on a municipality for torts committed by a member of its police force, whether in carrying out law enforcement duties or otherwise : trial decision, at paras. 84 and 108. III. Analysis and Decision [ 14 ] The appeal on the merits turns on the application of the common law of vicarious liability by a municipality for the sexual abuse of children by a member of its police force during working hours.

The appeal is not concerned with vicarious liability for torts committed by a municipal police officer in the execution or purported execution of “core law enforcement functions”, a descriptor coined by Tulloch J.A., now C.J.O., in the scholarly reasons he delivered for the Court in Smith v. Ontario (Attorney General) , 2019 ONCA 651 , [2019] O.J. No. 4155 (QL) .

Rather, the focus is on vicarious liability by a municipality for a tort committed by a member of its police force during working hours, but not in the execution of core law enforcement functions. [ 15 ] Three sub-issues arise: (1) did the judge commit reversible error in ruling Estabrooks was not a City employee when he engaged in the sexual abuse in question? (2) did he commit an equally significant error in finding the requisite strong connection between the City and Estabrooks’ wrongdoing was not established?

Consideration of this question brings into play s. 17 of the Police Act ; and (3) can a finding of vicarious liability be made without evidence from each class member confirming he or she was sexually abused by Estabrooks during his working hours as a police officer ? A. First sub-issue: was Estabrooks a City employee? [ 16 ] Both sides agree the leading authority on point is 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. , 2001 SCC 59 , [2001] 2 S.C.R. 983 .

In that case, the Supreme Court held a “search for the total relationship of the parties” was necessary to determine whether an employer-employee or an independent contractor relationship existed (para. 46). In the run-of- the-mill cases, the key question is “whether the person who has been engaged to perform the services is performing them as a person in business on his own account” (para. 47). Mr.

Hayes submits the application of the Sagaz test, adapted to the situation under consideration, and having regard to the following admitted or otherwise established facts, commands the conclusion that Estabrooks was indeed a City employee at the relevant time, namely when he committed the sexual abuse . [ 17 ] Estabrooks applied for a position with the Saint John Police Department by means of an application to the “Corporation of the City of Saint John” dated March 4, 1953.

He was sworn in as a police officer on March 20, 1953, pursuant to a City of Saint John Common Council Order. [ 18 ] Between 1957 and 1970, Estabrooks’ terms of employment were set by collective agreements between the Police Officers Union Local 61 and the City. The City was specifically referred to as the “Employer” in those agreements. Additionally, they dealt with issues readily associated with an employment relationship: rates of regular pay, overtime pay, hours of duty,

lunch breaks, vacation, leaves of absence, seniority, promotions, injuries in the line of duty, discipline, uniforms and clothing allowances, equipment, fitness for duty, classes of departmental positions and terms for internal competitions for promotions. [ 19 ] The City self-identified as Estabrooks’ employer in at least one other document, a credit card application in 1972. The record shows the first time the City claimed Estabrooks was not an employee while a member of its police force was in the pleadings. [ 20 ] Estabrooks viewed himself as a City employee.

In a June 6, 1980 letter to the City Director for Personnel and Training, Estabrooks stated: “I have been an employee of the City of Saint John since March 20, 1953”, the date of his hire as a City police officer. [ 21 ] The City was also vested with power over its police force, and Estabrooks, through two sets of Rules and Regulations for the Saint John Police Force enacted by the Common Council and in force sequentially for the entire duration of Estabrooks’ career as a police officer.

The Rules and Regulations stated the Common Council was at all times responsible for “the control and supervision” of the general administration of the police force. It charged the City with the following specific employment- related authority:

a) assigning the duties and responsibilities of all positions within the police force, including the deputy director, divisional inspectors, patrol sergeants and constables;

b) setting out the necessary qualifications for all applicants;

c) establishing the necessary elements for the training of recruits;

d) providing general instructions to members of the Police Department; and

e) rules of absences, time allowances, sickness and injuries, promotions, the content of orders, payroll, expenses, batons, use of firearms, saluting and discipline. [ 22 ] The judge ruled the Rules and Regulations were not evidence “that the City exercised a measure of control” because they “did not originate with the City or any of its employees”, but were drafted and presented to Common Council by the Director of Police (the first set) and the Chief of Police (the second set) (trial decision, para. 93).

The appellant underscores the Rules and Regulations were enacted by Common Council, and he submits the judge erred in law in disqualifying them as evidence of some control by the City. I agree. Exclusive involvement by police officials in the drafting and presentation of the Rules and Regulations does not preclude their admissibility or negate their significance as evidence of control by the City. [ 23 ] Moreover, the City was directly involved in the employment of Estabrooks himself as a member of its police force by: (

a) promoting him four times; (

b) denying his requests for promotion twice; (

c) completing performance evaluations for him; (

d) disciplining him on two occasions; (

e) adjudicating his grievances (and appeals) under the collective agreements; (

f) paying for his life insurance and drug coverage; and (

g) celebrating him, following retirement, as a 25-year service provider. [ 24 ] Despite those badges of an employer-employee relationship, the judge felt constrained to find Estabrooks was not a City employee because, on his understanding of the law, municipal police officers are not employees of the appointing municipality “ particularly, but not exclusively, in respect to the carrying out of their police duties”: (trial decision, para. 84).

In the judge’s considered opinion, municipal police officers occupy a public office characterized by independence of action that is inconsonant with an employment relationship with the City. It followed Estabrooks was not a City employee when he committed the sexual abuse of the class members. The judge came to this conclusion on the basis of his understanding of statements of the law found in

McCleave v. City of Moncton (1902), (SCC), 32 S.C.R. 106, [1902] S.C.J. No. 9 (QL), Gulkison v. Vancouver PoliceBoard, 2015 BCCA 361, [2015] B.C.J. No. 1761 (QL) and R. v. Campbell, (SCC), [1999] 1 S.C.R. 565, [1999] S.C.J.No. 16 (QL). As such, the finding that Estabrooks was not a City employee raises a question of law for which the standard of appellatereview is correctness.

In my respectful view, the judge erred in law in so finding. [25] In McCleave, the issue was whether the City of Moncton was vicariously liable for thewrongful execution by one of its constables of a search warrant under the Canada Temperance Act, S.C. 1878, c. 16. The Supreme Courtheld the City of Moncton could not be held liable for the acts of its constable “in his effort to secure the observance of the statute”: p.108. It is from this narrow perspective that the Court quoted approvingly the following passage from Buttrick v.

The City of Lowell, 1Allen [Mass.] 172: Police officers can in no respect be regarded as agents or officers of the city. Their duties are of a public nature. Their appointment isdevolved on cities and towns by the legislature as a convenient mode of exercising a function of government, but this does not renderthem liable for their unlawful or negligent acts.

The detection and arrest of offenders, the preservation of the public peace, theenforcement of the laws and other similar powers and duties with which police officers and constables are entrusted are derived from thelaw, and not from the city or town under which they hold their appointment.

For the mode in which they exercise their powers the city ortown cannot be held liable. [Emphasis added; para. 2] [26] In my view, the italicized phrase “in no respect”, which the judge underlined in his reasons fordecision, refers to acts performed by a municipally appointed police officer in the execution of the core law enforcement functionsidentified in the passage. In Lévesque and BMG Farming Ltd. v. Province of New Brunswick and New Brunswick Crop InsuranceCommission, 2011 NBCA 48, 372 N.B.R. (2d) 202, [2011] N.B.J.

No. 163 (C.A.), at para. 67, the Court explained McCleave involvedthe application of the “independent discretion rule”, which posited “the Crown was not vicariously liable for the actions of a policeofficer in the execution of statutory or common law powers that were vested in him or her personally and which called for the exercise ofindependent discretion” (emphasis added). That rule applied equally to municipalities and the Crown.

The phrase “in no respect” doesnot embrace intentional torts that are unrelated to core law enforcement functions, like sexual abuse of children during working hours. [27] The common issues judge also quoted the following passage from Gulkison as supporting theview that municipal police officers are never employees of the municipality that hired them: Prior to passage of the Police Act in 1974, British Columbia’s legislation providing for appointment of municipal police officers was setin the historical theory of the police role defined by the common law -- that a police constable is a holder of an ancient office and not anemployee of those appointing him -- usually the Board of Police Commissioners.

In the theory that animated (and which to a degree stillanimates) municipal policing, the office of constable connoted original authority, with the independence of action that phrase entails,answerable only to the law and his conscience. [...] [para. 11] [28] In Gulkison, the plaintiff alleged he was abused and sexually assaulted by a member of theVancouver Police Department, and claimed against the Vancouver Police Board for damages.

As the British Columbia Court of Appealnoted at the outset of its reasons, the claim was based on the premise that the defendant, the Vancouver Police Board, was responsiblefor the liabilities of the Board of Police Commissioners, which was, at all material times, the sole administrator of the Vancouver PoliceDepartment. The Vancouver Police Board applied for dismissal of the action, arguing it had no liability for events that occurred whilethe Board of Police Commissioners was charged with exclusive oversight of the Vancouver Police Department.

The Notice ofApplication posed the following questions: (1) are the Board of Police Commissioners and Vancouver Police Board separate entities?and (2) if the answer to the foregoing is “yes”, could the Vancouver Police Board be liable for any liabilities attributed to the Board ofCommissioners? The parties agreed that if the questions were answered “yes” and “no”, respectively, the Court “shall dismiss theentirety of the Plaintiff’s action against the Vancouver Police Board” (para. 2).

The Court of Appeal answered the two questions in thatfashion and, as a result, the Vancouver Police Board was not liable for the damages claimed against it, and the action stood to bedismissed. [29] Thus, the statement from Gulkison quoted by the judge was made in obiter and, as such, was notbinding on him. At any rate, I view the statement as overly broad, having regard to the authoritative jurisprudence on point, particularlyCampbell.

It is only where municipal police officers perform core law enforcement functions that the law recognizes them as publicofficers that are independent of the appointing municipality, and therefore not its agent or employee. [30] The judge quoted, as well, the following excerpts from Campbell:

[…] A police officer investigating a crime is not acting as a government functionary or as an agent of anybody. He or she occupies apublic office initially defined by the common law and subsequently set out in various statutes. […] [...] [...] The importance of this principle, which itself underpins the rule of law, was recognized by this Court in relation to municipal forcesas long ago as McCleave v. City of Moncton (1902), (SCC), 32 S.C.R. 106.

That was a civil case, having to do withpotential municipal liability for police negligence, but in the course of his judgment Strong C.J. cited with approval the followingproposition, at pp. 108-9: Police officers can in no respect be regarded as agents or officers of the city. Their duties are of a public nature. Their appointment isdevolved on cities and towns by the legislature as a convenient mode of exercising a function of government, but this does not renderthem liable for their unlawful or negligent acts.

The detection and arrest of offenders, the preservation of the public peace, theenforcement of the laws, and other similar powers and duties with which police officers and constables are entrusted are derived from thelaw, and not from the city or town under which they hold their appointment. [paras. 27 and 29] [31] The judge overlooked an important qualifier to the proposition that a police officer “is notacting as a government functionary or as an agent of anybody”: that is so when he or she is “investigating a crime” or otherwise engagedin the execution of “powers and duties with which police officers and constables are entrusted”.

As it underscored in Campbell, at para.29, the Supreme Court was “concerned only with the status of an RCMP officer in the course of a criminal investigation, and in thatregard the police are independent of the control of the executive government” (emphasis added). It is trite that, in committing the sexualabuse of class members, Estabrooks was not investigating a crime or otherwise executing core law enforcement functions.

The judge’sfindings on this subject bear repeating: In this case we are concerned, not with Estabrooks’ carrying out of his police duties per se, but rather with his serial commission ofsexual assaults against the plaintiff and Class Members while he was supposed to be carrying out his police duties. The evidence of theplaintiff and other potential Class Members who testified about Estabrooks’ sexual assaults against them was that he was in uniform, in apolice car and often kept his gun visible.

Thus, while he was not actually investigating crime or doing other police work, he wascommitting these assaults during working hours when he should have been investigating or preventing crime and, at times, under theguise of doing police work as he often used the trappings of the job to command their presence under the pretense that he wanted to talkto them about a crime he was investigating. [Emphasis added; para. 85] [32] The view that police officers are not agents or employees of the appointing municipality is tiedto their independence in carrying out core law enforcement functions.

In Smith, Tulloch, J.A., as he then was, situated in its propercontext the excerpt from Campbell quoted by the trial judge, and explained the circumstances under which the law treats municipalpolice officers as independent public officers: [39] The modern doctrine of police independence takes its origins from English and Canadian decisions that conceptualized policeofficers as the holders of a civil office of trust who derived their authority directly from the law. Three English decisions -- Fisher v.Oldham Corp., [1930] 2 K.B. 364, [1930] All E.R. Rep. 96; Attorney General for New South Wales v.

Perpetual Trustee Co., [1955]A.C. 457, [1955] 1 All E.R. 846 (P.C.); and R. v. Metropolitan Police Commissioner, Ex parte Blackburn, [1968] 2 Q.B. 118, [1968] 1All E.R. 763 (C.A.) -- laid the foundations of the doctrine of police independence in English law. Canadian courts have echoed much ofthe reasoning from these decisions in developing the doctrine of police independence in this country. (

a) English case law [40] Fisher is often considered the progenitor of the concept of police independence in English law: Philip C. Stenning, Legal Status ofthe Police, Law Reform Commission of Canada, Study Paper, Criminal Law Series (Ottawa: Minister of Supply and Services Canada,1981), at p. 113. In that case, McCardie J. held that an English municipality was not vicariously liable for a police officer’s tort of falseimprisonment.

He determined that, at common law, police officers are not servants of the municipality, but instead are officers of theCrown with a duty to preserve and enforce the law: at pp. 370-71 K.B. He reasoned that holding the municipality vicariously liablewould entitle the municipality to demand control over arrest and prosecution of offenders. In his view, the prospect of such municipalcontrol over the police was [page319] a “grave and most dangerous constitutional change” that would jeopardize police independence: atpp. 372-73, 377-78 K.B.

Fisher thus came to form the constitutional foundation of police independence from municipalities and servedas a basis for the subsequent cases that developed the doctrine of police independence in English law: Paul Ceyssens, Legal Aspects ofPolicing, looseleaf (2003-Rel. 16), (Saltspring Island, B.C.: Earlscourt Legal Press, 1994), vol. 1, at p. 1-19.

[41] In Perpetual Trustee Co., the Privy Council applied Fisher to establish that the police were independent not only frommunicipalities, but also from the Crown itself. The case concerned whether a police constable stood in a servant-master relationship tothe Crown such that the Crown could claim damages for loss of services caused by the defendant’s negligent driving that injured thepolice officer. The Privy Council held that police officers were not servants of the Crown and dismissed the Crown’s claim.

ViscountSimonds endorsed the reasoning in Fisher and stated, at pp. 489-90 A.C.: Their Lordships can now express their final opinion upon the case. They repeat that, in their view, there is a fundamental differencebetween the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. Theconstable falls within the latter category. His authority is original, not delegated, and is exercised at his own discretion by virtue of hisoffice: he is a ministerial officer exercising statutory rights independently of contract.

The essential difference is recognized in the factthat his relationship to the Government is not, in ordinary parlance, described as that of servant and master. [42] Finally, in Blackburn, Lord Denning provided the leading statement of police independence and applied the principles developed inthe private law cases of Fisher and Perpetual Trustee Co. in a public law context. The case concerned an application to judicially reviewthe Commissioner of Police’s policy decision to direct police officers not to lay charges against clubs breaching gambling laws.

LordDenning extracted the following proposition from Fisher and Perpetual Trustee Co., at pp. 135-36 Q.B.: [But] I have no hesitation in holding that, like every constable in the land, [the Commissioner of Police] should be, and is, independent ofthe executive. He is not subject to the orders of the Secretary of State, save that under the Police Act, 1964, the Secretary of State can callupon him to give a report, or to retire in the interests of efficiency. I hold it to be the duty of the Commissioner of Police of theMetropolis, as it is of every chief constable, to enforce the law of the land.

He must take steps so to post his men that crimes may bedetected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to beprosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save ofthe law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place [page320] or that; or thathe must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lieson him.

He is answerable to the law and to the law alone. [43] Lord Denning ultimately dismissed the appeal on the basis that the Commissioner of Police had withdrawn the impugned policydirective and would exercise his discretion afresh to consider whether to lay charges: at pp. 137-38 Q.B. […] [45] Canadian courts were also quick to apply the reasoning in Fisher, Perpetual Trustee Co. and Blackburn to the Canadian context. AsStenning has observed in Legal Status of the Police, at pp. 113-15, these English cases had a powerful influence on Canadian thinkingabout police independence. For instance, in Nicholson v.

Haldimand Norfolk (Regional) Police Commissioners, (SCC),[1979] 1 S.C.R. 311, [1978] S.C.J. No. 88, the Supreme Court relied on Perpetual Trustee Co. to hold that a police officer is a holder ofa public office and exercises an original authority confirmed by the police legislation to maintain public order and preserve the peace: atpp. 321-22 S.C.R. […] [48] More recently, the Supreme Court confirmed and applied the principle of police independence to the criminal law context in R. v.Campbell, (SCC), [1999] 1 S.C.R. 565, [1999] S.C.J. No. 16.

In that case, the court rejected the Crown’s argument thatRoyal Canadian Mounted Police (“RCMP”) agents who violated the Narcotic Control Act, R.S.C. 1985, c. N-1, enjoyed public interestimmunity as agents of the Crown. Relying on McCleave, Perpetual Trustee Co., Blackburn and Nicholson, the Supreme Court held thatpolice officers investigating a crime occupied a public office defined by the common law and statute. At paras. 32-33 of its reasons, thecourt explicitly adopted the passages from Perpetual Trustee Co. and Blackburn quoted above.

Accordingly, the court concluded thatpolice officers conducting a criminal investigation are “independent of the control of the executive government”: at para. 29. They arenot considered servants or agents of the government and are “not subject to political direction”: at para. 33. Instead, they are only“answerable to the law”: at para. 33. [49] Campbell underlined the importance of police independence. The court emphasized that the principle of police independence in acriminal investigation “underpins the rule of law”: at para. 29.

It accordingly interpreted the broad language in s. 5 of the RoyalCanadian Mounted Police Act, R.S.C. 1985, c. R-10, that the RCMP are under ministerial direction in a manner that preserved police

independence from such direction in matters of core law enforcement : at paras. 28-29, 33. […] [53] Beyond the case law, numerous Royal Commissions on policing issues have also echoed the holding in Campbell that police independence protects police decision-making in core law enforcement functions from executive interference.

Even reports that have struck a more cautionary tone on police independence have endorsed police independence in relation to the core law enforcement functions of conducting criminal investigations, laying charges, and making arrests. [Emphasis added; paras. 39-43, 45, 48, 49 and 53] [ 33 ] The independence rationale for the negation of an employment relationship is bereft of traction where, as here, the acts for which vicarious liability is claimed are not in furtherance of, or incidental to, the bona fide execution of core law enforcement functions.

I repeat: it is only where a municipally appointed police officer is engaged in the performance of those functions that the law holds he or she occupies a public office, separate from the employer-employee relationship that is otherwise in effect. [ 34 ] Estabrooks was not executing core law enforcement functions when he sexually abused the class members. When he did so, he was not occupying a public office independent of the City; he was, quite simply, an employee of the City. B.

Second sub-issue: a sufficiently strong connection? [ 35 ] The proper application of Bazley “is a legal issue that can be readily ‘extracted’ from the factual context”: 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 , para. 23 . As such, correctness is the controlling standard of review, and the Court owes no deference to the trial judge’s negative answer to the question: was there a sufficiently strong connection between Estabrooks’ functions as a police officer and his wrongdoing?

In my view, there was. [ 36 ] In Bazley , the Supreme Court agreed the Salmond test, broadly interpreted, applied in providing the answer to the following general question: may employers be held vicariously liable for their employees’ sexual assaults on clients or persons within their care? Under that two-branch test, employers are vicariously liable: (1) for acts they authorized; or (2) acts they did not authorize that are so connected with authorized acts that they may be regarded as modes, albeit improper, of doing an authorized act.

In Bazley , the Supreme Court accepted the second branch may be approached in two steps: First, a court should ascertain if there are precedents that unambiguously determine on which side of the liability line the case falls. If an answer does not emerge from the jurisprudence, the second step is to determine “ whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability” (para. 15).

The debate in our Court focused on the second step. [ 37 ] In Bazley , the Supreme Court identified the main policy considerations that lie “at the heart of vicarious liability” as: providing a just and practical remedy for the harm and deterrence of future harm (para. 29). It went on to explain: First and foremost is the concern to provide a just and practical remedy to people who suffer as a consequence of wrongs perpetrated by an employee.

Fleming expresses this succinctly (at p. 410): “a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise”. The idea that the person who introduces a risk incurs a duty to those who may be injured lies at the heart of tort law. As Cardozo C.J. stated in Palsgraf v. Long Island R.

Co. , 162 N.E. 99 (N.Y. 1928), at p. 100, “[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” This principle of fairness applies to the employment enterprise and hence to the issue of vicarious liability. While charitable enterprises may not employ people to advance their economic interests, other factors, discussed below, make it fair that they should bear the burden of providing a just and practical remedy for wrongs perpetrated by their employees.

This policy interest embraces a number of subsidiary goals. The first is the goal of effective compensation. “One of the most important social goals served by vicarious liability is victim compensation. Vicarious liability improves the chances that the victim can recover the judgment from a solvent defendant.” (B. Feldthusen, “Vicarious Liability for Sexual Torts”, in Torts Tomorrow (1998), 221, at p. 224.) Or to quote Fleming, the master is “a more promising source of recompense than his servant who is apt to be a man of straw” (p. 410).

However, effective compensation must also be fair, in the sense that it must seem just to place liability for the wrong on the employer.

Vicarious liability is arguably fair in this sense. The employer puts in the community an enterprise which carries with it certain risks. When those risks materialize and cause injury to a member of the public despite the employer’s reasonable efforts, it is fair that the person or organization that creates the enterprise and hence the risk should bear the loss. This accords with the notion that it is right and just that the person who creates a risk bear the loss when the risk ripens into harm.

While the fairness of this proposition is capable of standing alone, it is buttressed by the fact that the employer is often in the best position to spread the losses through mechanisms like insurance and higher prices, thus minimizing the dislocative effect of the tort within society. “Vicarious liability has the broader function of transferring to the enterprise itself the risks created by the activity performed by its agents” ( London Drugs , per La Forest J., at p. 339). The second major policy consideration underlying vicarious liability is deterrence of future harm.

Fixing the employer with responsibility for the employee’s wrongful act, even where the employer is not negligent, may have a deterrent effect. Employers are often in a position to reduce accidents and intentional wrongs by efficient organization and supervision. Failure to take such measures may not suffice to establish a case of tortious negligence directly against the employer. Perhaps the harm cannot be shown to have been foreseeable under negligence law. Perhaps the employer can avail itself of the defence of compliance with the industry standard.

Or perhaps the employer, while complying with the standard of reasonable care, was not as scrupulously diligent as it might feasibly have been. As Wilkinson J. explained in the companion appeal’s trial judgment (at para. 69): If the scourge of sexual predation is to be stamped out, or at least controlled, there must be powerful motivation acting upon those who control institutions engaged in the care, protection and nurturing of children. That motivation will not in my view be sufficiently supplied by the likelihood of liability in negligence. In many cases evidence will be lacking or have long since disappeared.

The proof of appropriate standards is a difficult and uneven matter. I agree. Beyond the narrow band of employer conduct that attracts direct liability in negligence lies a vast area where imaginative and efficient administration and supervision can reduce the risk that the employer has introduced into the community. Holding the employer vicariously liable for the wrongs of its employee may encourage the employer to take such steps, and hence, reduce the risk of future harm.

A related consideration raised by Fleming is that by holding the employer liable, “the law furnishes an incentive to discipline servants guilty of wrongdoing ” (p. 410). The policy grounds supporting the imposition of vicarious liability – fair compensation and deterrence – are related. The policy consideration of deterrence is linked to the policy consideration of fair compensation based on the employer’s introduction or enhancement of a risk.

The introduction of the enterprise into the community with its attendant risk, in turn, implies the possibility of managing the risk to minimize the costs of the harm that may flow from it. Policy considerations relating to the fair allocation of loss to risk-creating enterprises and the deterrence of harms tend to support the imposition of vicarious liability on employers. But, as Fleming notes, there often exists a countervailing concern. At one time the law held masters responsible for all wrongs committed by servants.

Later, that policy was abandoned as too harsh in a complex commercial society where masters might not be in a position to supervise their servants closely. Servants may commit acts, even on working premises and during working hours, which are so unconnected with the employment that it would seem unreasonable to fix an employer with responsibility for them. For example, if a man assaults his wife’s lover (who coincidentally happens to be a co-worker) in the employees’ lounge at work, few would argue that the employer should be held responsible.

Similarly, an employer would not be liable for the harm caused by a security guard who decides to commit arson for his or her own amusement: see, e.g., Plains Engineering Ltd. v. Barnes Security Services Ltd. (1987), 43 C.C.L.T. 129 (Alta. Q.B.) . On further analysis, however, this apparently negative policy consideration of when liability would be appropriate is revealed as nothing more than the absence of the twin policies of fair compensation and deterrence that justify vicarious liability.

A wrong that is only coincidentally linked to the activity of the employer and duties of the employee cannot justify the imposition of vicarious liability on the employer. To impose vicarious liability on the employer for such a wrong does not respond to common sense notions of fairness. Nor does it serve to deter future harms. Because the wrong is essentially independent of the employment situation, there is little the employer could have done to prevent it.

Where vicarious liability is not closely and materially related to a risk introduced or enhanced by the employer, it serves no deterrent purpose, and relegates the employer to the status of an involuntary insurer.

I conclude that a meaningful articulation of when vicarious liability should follow in new situations ought to be animated by the twin policy goals of fair compensation and deterrence that underlie the doctrine, rather than by artificial or semantic distinctions. [Emphasis added; paras. 30-36] [ 38 ] The policy considerations in question – fair and practical compensation, and deterrence – militate strongly in favour of a finding of vicarious liability in the present case. It appears the City is the only realistic source of compensation for the harm caused to the class members.

Moreover, holding the City liable will encourage consideration and pursuit of measures susceptible of reducing the risk of future misconduct and harm of the kind revealed by the record in the case at hand. That said, the Supreme Court emphasized in Bazley that the policy purposes are served only where the connection between the “employment enterprise” and the wrongdoing is sufficiently strong:

Underlying the cases holding employers vicariously liable for the unauthorized acts of employees is the idea that employers may justly be held liable where the act falls within the ambit of the risk that the employer’s enterprise creates or exacerbates. Similarly, the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization).

The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence . [Emphasis added; para. 37] [ 39 ] Bazley provides a general framework to assess the strength of the connection between the employment enterprise and the wrong: Reviewing the jurisprudence, and considering the policy issues involved, I conclude that in determining whether an employer is vicariously liable for an employee’s unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles:

(1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of “scope of employment” and “mode of conduct”.

(2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires . Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence.

Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would 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 wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant 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; (

b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee); (

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 . [Emphasis added; para. 41] As I will explain, the underlined subsidiary factors are most salient in this case. [ 40 ] In Bazley , the Supreme Court went on to deal with the considerations that are of particular interest in cases of sexual abuse by employees: Applying these general considerations to sexual abuse by employees, there must be 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. It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks. The policy considerations that justify imposition of vicarious liability for an employee’s sexual misconduct are unlikely to be satisfied by incidental considerations of time and place.

For example, an incidental or random attack by an employee that merely happens to take place on the employer’s premises during working hours will scarcely justify holding the employer liable. Such an attack is unlikely to be related to the business the employer is conducting or what the employee was asked to do and, hence, to any risk that was created. Nor is the imposition of liability likely to have a significant deterrent effect; short of closing the premises or discharging all employees, little can be done to avoid the random wrong. Nor is foreseeability of harm used in negligence law the test.

What is required is a material increase in the risk as a consequence of the employer’s enterprise and the duties he entrusted to the employee, mindful of the policies behind vicarious liability. What factors are relevant to whether an employer’s enterprise has introduced or significantly exacerbated a risk of sexual abuse by an employee? (Again, I speak generally, supplementing the factors suggested above.) It is obvious that the risk of an employee sexually abusing a child may be materially enhanced by giving the employee an opportunity to commit the abuse .

There are many kinds of opportunity and the nature of the opportunity in a particular case must be carefully evaluated in determining whether it has, in fact, materially increased the risk of the harm that ensued. If an employee is permitted or required to be with children for brief periods of time, there may be a small risk of such harm – perhaps not much greater than if the employee were a stranger. If an employee is permitted […] to be alone with a child for extended periods of time, the opportunity for abuse may be greater .

If in addition to being permitted to be alone with a child for extended periods, the employee is expected to supervise the child in intimate activities like bathing or toiletting, the opportunity for abuse becomes greater still. As the opportunity for abuse becomes greater, so the risk of harm increases. The risk of harm may also be enhanced by the nature of the relationship the employment establishes between the employee and the child .

Employment that puts the employee in a position of intimacy and power over the child (i.e., a parent-like, role-model relationship) may enhance the risk of the employee feeling that he or she is able to take advantage of the child and the child submitting without effective complaint. The more the employer encourages the employee to stand in a position of respect and suggests that the child should emulate and obey the employee, the more the risk may be enhanced.

In other words, the more an enterprise requires the exercise of power or authority for its successful operation, the more materially likely it is that an abuse of that power relationship can be fairly ascribed to the employer . See Boothman v. Canada , supra . Other factors may be important too, depending on the nature of the case. To require or permit an employee to touch the client in intimate body zones may enhance the risk of sexual touching, just as permitting an employee to handle large sums of money may enhance the risk of embezzlement or conversion.

This is the common sense core of the “mode of conduct” argument accepted by the trial judge in this case. (The same factor might of course be analyzed in terms of enhanced opportunity.) Time and place arguments may also be relevant in particular cases. The mere fact that the wrong occurred during working hours or on the jobsite may not, standing alone, be of much importance; the assessment of material increase in risk cannot be resolved by the mechanical application of spatial and temporal factors.

This said, spatial and temporal factors may tend to negate the suggestion of materially enhanced risk of harm, insofar as they suggest that the conduct was essentially unrelated to the employment and any enhanced risk it may have created (for example, the employee’s tort occurred offsite and after hours). The policy considerations of fair compensation and deterrence upon which vicarious liability is premised may be attenuated or completely eliminated in such circumstances. In

summary, the test for vicarious liability for an employee’s sexual abuse of a client should focus on whether the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm . The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability – fair and efficient compensation for wrong and deterrence. This requires trial judges to investigate the employee’s specific duties and determine whether they gave rise to special opportunities for wrongdoing.

Because of the peculiar exercises of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing . [Emphasis added; paras. 42-46] [ 41 ] Having found Estabrooks was not a City employee, but an independent public officer, the judge did not consider Estabrooks’ functions outside the realm of core law enforcement. Those functions likely occupied more of his time than actual law enforcement.

For our purposes, suffice it to focus on those designed to enhance proximity to the community, such as friendly interaction with the public, including children, during neighborhood visits, while at the wheel of a City police car, and wearing a police uniform and badge. Those authorized functions were the means by which Estabrooks impressed the children and gained their trust, which in turn led them to board the police cruiser where they were sexually abused. Those functions, which were not core law enforcement in nature, were an integral part of both his job and his “system” to sexually abuse the children.

By empowering Estabrooks to engage in those job-related activities, the City materially increased the risk of sexual abuse. [ 42 ] The judge found the connection between the City and Estabrooks’ wrongdoing “was not sufficiently close that it would be appropriate to impose vicarious liability on the City for the torts committed by [him] against [Mr. Hayes] and the Class Members while he was a police officer between 1953 and 1975”: para. 105. The judge came to this conclusion based on the following:

a) the City did not create a power or dependency relationship between him and his victims;

b) the power over the victims that he abused originated from the law, not the City;

c) he was working for the public at large;

d) the objects or aims of the City’s enterprise were not furthered by his sexual assaults which, I find, were committed solely for his own purposes;

e) the City did not encourage any of his behavior so as to enhance the risk of the harm that he inflicted on the plaintiff and other Class Members as a police officer;

f) the City had no control over how Estabrooks carried out his police duties which was entirely up to the Chief of Police. [para. 102] [ 43 ] In my respectful view, the first three bases do not withstand scrutiny. The appellant submits the last three are either neutral on the scales of justice or irrelevant, particularly if it is accepted Estabrooks was a City employee when he sexually abused class members. That may be so, but I need not dwell on their significance given the unsustainability of the first three.

I begin with the first and second bases proffered by the judge to deny vicarious liability. (1) the City did not create a power or dependency relationship between Estabrooks and his victims, and the power over the victims that he abused originated from the law, not the City [ 44 ] I do not share this view. The City did create, through Estabrooks ’ employment as a municipal police officer and his authorized interaction with the community where the children lived, a power relationship with his victims.

From a juridical standpoint, his law enforcement powers were obviously sourced in the law, but, as a practical matter, in the real world in which Estabrooks worked and the victims lived, his power over them originated from his job as a City police officer, and its manifestation when dealing with them. As noted in my introductory remarks, the uncontradicted evidence is that Estabrooks used the power and status of his job as City police officer to sexually abuse vulnerable and impressionable children.

He initiated each incident of sexual abuse while wearing a City-issued police uniform and badge, and in control of a City patrol car. The trial judge noted there could be no argument with the following submission, albeit “as far as it goes”: The plaintiff further submits that as children Mr.

Hayes and the other Class Members who were abused by Estabrooks during this time were particularly vulnerable due to Estabrooks’ status as a police officer and the inherent power that conferred on him. [para. 97] [ 45 ] Following the criminal trial where he was found guilty of four charges of indecent assault on children while a police officer, the sentencing judge described Estabrooks’ “system” for perpetrating the assaults; it involved acting as a “friendly police officer”, picking up disadvantaged children, and sexually abusing them in the police car.

The victims who testified at the common issues trial described how Estabrooks used his position of power and authority as a City police officer to achieve his deviant ends. Their evidence on point bears emphasizing: (

a) the assaults took place in Estabrooks’ City police car, while Estabrooks was in uniform; (

b) each of the victims got into Estabrooks’ City police car and obeyed his commands because of his status as a police officer. Mr. O’Hearn testified Estabrooks threatened to put him in jail, and that he “got in the car because [Estabrooks] is a Saint John police officer[.]” Mr. Beshara testified he got into Estabrooks’ police car “because he asked me to […] and he is a police officer”. Mr. Hayes complied with Estabrooks’ demands because he was afraid of being sent to jail, and because Estabrooks threatened to kill his family with his handgun. Mr. Vautour testified he got in Estabrooks’ police car because he believed police officers were trustworthy.

[46] Moreover, victims were reluctant to report the abuse because Estabrooks was a City policeofficer. The appellant highlights the following evidence to make the point. Mr. Thorne testified he felt the City police would not believehim because Estabrooks was “one of their own”. Mr. O’Hearn testified his mother was too afraid of the police to file a complaint. Thisevidence brings into sharp focus the following observation in Bazley: “Employment that puts the employee in a position of […] powerover the child […] may enhance the risk of the employee feeling that he or she is able to take advantage of the child and the childsubmitting without effective complaint” (para. 44).

(2) Estabrooks “was working for the public at large” [47] This statement speaks to situations where Estabrooks was engaged in core law enforcementfunctions. Estabrooks was not serving the public at large when he sexually abused the class members. As I have endeavoured to explain,he did not then occupy any public office independent of the City; indeed, he was, at all material times, an employee of the City. [48] The common law on the specific situation under consideration here has evolved, and will nodoubt continue doing so. I distill its current state from Bazley and the two sets of reasons in Jacobi v.

Griffiths, (SCC),[1999] 2 S.C.R. 570, [1999] S.C.J. No. 36 (QL), where in the course of determining vicarious liability of a Boys and Girls Club forsexual assaults by one of its employees, both McLachlin J., later C.J.C., (for herself and two other justices in dissent) and Binnie J. (forhimself and three other justices) made observations on the very issue at the heart of this appeal, namely vicarious liability in powerrelationships, including the relationship between police officers and children. Admittedly, these observations are, strictly speaking,incidental.

However, they are in sync with Bazley and, in my view, authoritative given that they constitute a link in the chain ofreasoning laid out by the authors to explain their respective positions. [49] Jacobi v.

Griffiths is particularly significant for our present purposes because both JusticeMcLachlin for the minority and Justice Binnie for the majority turned their minds to the application of the doctrine of vicarious liabilityfor a police officer’s sexual assault while on duty. [50] Justice McLachlin made the following pertinent observations: A fourth consideration is the extent of power conferred on the employee in relation to the victim. Courts must be conscious of bothexpressly and implicitly conferred power.

In this case, I need go no further than the trial judge’s finding that Griffiths exercised a “god-like” authority over his victims to conclude that yet another factor points toward liability. This negates the suggestion that “[t]he Club didnot confer any meaningful ‘power’ over the appellants” (Binnie J., at para. 83).

While the child’s subjective assessment of the situationis not alone conclusive of the nature of the power the employee exercised, when analysing the degree of power a job carries, it iscertainly appropriate to consider what a reasonable child would think of the employee’s position in assessing whether the employershould be held vicariously liable for the employee’s tort. While Griffiths was hardly a police officer or foster parent, power must beunderstood in context.

Here, as a role model at a club that dealt with vulnerable children, there is little to negate the trial judge’sconclusion that Griffiths’ position over the children was one of power. By clothing the employee with that power, the employerintroduced a risk, small but real, of its abuse.

This, in turn, supports the view that the employer may fairly be held responsible for themisuses of such power. [Emphasis added; para. 18] [51] I take from the statement “Griffiths was hardly a police officer” that, if he had been, the case forvicarious liability would have been indisputable, having regard to the extent of the power conferred on police officers. As for JusticeBinnie, he made the following comments: I would not want to be taken as suggesting that creation of a parent-type relationship constitutes a precondition to vicarious liability inchild abuse cases.

However, not only do the “parental” cases have a particular relevance to the facts of this appeal, they show how highthe courts have set the bar before imposing no-fault liability. I think Huddart J.A. was correct in this case in the B.C. Court of Appeal toemphasize job-created power as the most relevant source of “connectedness” (p. 7) to the present appeal. Of course, other powerrelationships have also been held to supply the necessary “strong connection” in different fact situations.

In the United States, the casessuggest that job-created authority is sufficient, for example, if it could be expected to intimidate a reasonable individual in the shoes ofthe victim. Thus the Supreme Court of California dealt with police power in Mary M. v. City of Los Angeles, 814 P.2d 1341 (1991). Themajority of that court, sitting en banc, found the City of Los Angeles to be liable for the rape of a motorist by a police officer. Themajority concluded, in terms of the Salmond test, that the rape had occurred in “the course of employment”.

A police officer, in uniform,found a motorist impaired while driving, and instead of taking her to the police station, he took her to her house and raped her. He wasconvicted and sent to prison.

The issue was whether his employer should be held vicariously liable to provide financial compensation.The majority of the court found that in view of the significant power and authority granted to the officer by the City, which included thepower to detain persons at gunpoint, place them in handcuffs, remove them from their residences, frisk them, and even use deadly force,“it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct” (p. 1350).

In other words, the manifest power inherent in the job-created role of police officer made the employer liable for its abuse. By contrast,the job-created power of a high school teacher over his pupil was considered by the same court to be insufficient to impose vicariousliability in John R. v. Oakland Unified School District, 769 P.2d 948 (Cal. 1989), discussed below. [Emphasis added; para. 64] While Justice Binnie does not explicitly endorse the principles he extracts from American case-law, the context points to theiracceptance. [52] In Jacobi v.

Griffiths, the minority rejected the suggestion “that an employee’s job must bear asufficient similarity to parenting to invoke vicarious liability in child abuse cases”: para. 26. Justice Binnie’s observations quoted abovewere designed to refute the suggestion he was espousing the view that “creation of a parent-type relationship constitutes a precondition tovicarious liability in child abuse cases”: para. 64.

It is to this end, that Justice Binnie mentions vicarious liability for sexual assaults bypolice officers, while on duty, which he offers as an example of vicarious liability in the absence of a parent-type relationship.Correlatively, he refers to the majority decision in Mary M. v. City of Los Angeles, 54 Cal. (3d) 202 (Cal. 1991) without suggesting, inany way, that it is incorrect. [53] In that case, the Supreme Court of California found the City of Los Angeles vicariously liablefor a rape committed by one of its police officers while on duty.

The trial judge distinguished Mary M. on two grounds: (1) it was notdisputed that the rapist was an employee of the City of Los Angeles; and (2) there was a statute in force which governed the liability ofpublic entities for injuries caused by their employees in the course of their employment. With respect, I do not agree Mary M. isdistinguishable. Estabrooks was an employee of the City of Saint John when he committed the sexual assaults between 1953 and 1975,while on duty.

As I have stated, perhaps too often, he was not then executing core law enforcement functions or even purporting to do so.Moreover, the California statute to which the trial judge referred simply incorporated general standards of tort liability as the primarybasis for respondeat superior liability of public entities: Mary M., para. 3. Accordingly, the statute’s wording did not enlarge vicariousliability at common law for public entities, such as the City of Los Angeles. Unlike the trial judge, I attribute no weight to the wording ofthe California statute in assessing the precedential value of Mary M.

See, as well, Applewhite v. City of Baton Rouge, 380 So. (2d) 119(La. Ct. App. 1979), which is cited approvingly by the majority in Mary M. [54] The denial of vicarious liability by the City for Estabrooks’ sexual abuse of class members,during his working hours as a City police officer, cannot be reconciled with the observations of both the majority and the minority inJacobi v. Griffiths relating to vicarious liability for sexual assaults committed by police officers while on duty.

Nor, for that matter, canthe denial be harmonized with the factors Bazley tells us predominate in determining vicarious liability in cases involving sexual abuse ofchildren by employees with job-created authority over them. [55] In cases of sexual assaults on children by police officers, it is their job-created power over thechildren that is the most relevant source of “connectedness”: Jacobi v. Griffiths, para. 64.

Indeed, the power relationship betweenEstabrooks and the children he sexually abused, which is traceable to his job with the City, provides the close connection needed towarrant the imposition of vicarious liability: Bazley, para. 46.

The City provided not only the locale (City police cruiser) and theopportunity to commit the sexual assaults; it enhanced the risk of their occurrence by providing Estabrooks with job-sourced authorityover the children and all the “bells and whistles” that led them to trust him unconditionally (police cruiser, police uniform and policebadge) and to fear him (handgun). [56] In my judgment, the requisite strong connection between Estabrooks’ job and his wrongdoing isestablished. I am satisfied that, on a proper application of the principles adopted in Bazley and Jacobi v.

Griffiths, the City is vicariouslyliable, at common law, for Estabrooks’ sexual abuse of the class members, during his working hours as a City police officer. For anillustration of the application of those principles to a case of sexual assault by a police officer, while on duty, see Evans v. Sproule, (ON SC), [2008] O.J. No. 4518 (QL) (S.C.J.), paras. 83-100. That brings me to s. 17(1) of the Police Act, which imposesvicarious liability on municipalities for torts committed by a member of their police force in the performance or purported performanceof the police duties enunciated in s. 12. [57]

Section 17 has no application in respect of

an act occurring before it came into force: s. 17(3).Since Estabrooks’ sexual abuse took place before s. 17 came into force, the judge acknowledged and the City concedes the provisiondoes not apply. Nevertheless, the judge concluded that, because s. 17 is deemed remedial by virtue of the

Interpretation Act, R.S.N.B.1973, c. I-13, it amounts to a declaration by the Legislature that the pre-existing common law did not impose liability on municipalitiesfor torts committed by members of their police forces, no matter the circumstances (trial decision, at para. 108). In other words, s. 17 isdeclaratory of a pre-existing total exclusion of municipal vicarious liability under the common law. I respectfully disagree for thefollowing reasons. [58] I discern no such declaration of the prior state of the common law from the text and context of s.

17. Counsel advised the related debates in the Legislature do not reveal an intent to declare the common law prescribed a total exclusion of municipal vicarious liability. As I have explained, the common law excluded vicarious liability only where the member of the municipal police force was engaged in the performance of core law enforcement functions, in which event the “independent discretion rule” applied (see L évesque v. New Brunswick , at para. 66, and the authorities cited therein) . That limited exclusion, which has been effectively eliminated by s. 17 , is not in play in this case.

Moreover, there is nothing in the wording of s. 17 or any other provision of the Police Act to displace the common law in respect of torts by a municipal police officer, during working hours, that are not committed in the execution of core law enforcement functions. Accordingly, the common law pertaining to that situation remains applicable: R. v. Basque , 2023 SCC 18 , [2023] S.C.J. No. 18 (QL) , para. 40 . Nor does s. 17 purport to freeze the common law as of the date of its enactment. As a result, the test for vicarious liability set out in Bazley , Jacobi v. Griffiths and E.B. v.

Order of the Oblates of Mary Immaculate in the Province of British Columbia , among other recent Supreme Court decisions, governs and its application compels a finding of vicarious liability. C. Third sub-issue: can a finding of vicarious liability be made without evidence from each class member confirming sexual abuse by Estabrooks during his working hours as a police officer? [ 59 ] The City submits a negative answer must be given to this question.

The judge rejected the submission for the following reasons: In this case the court received evidence from seven potential members of the class, the size of which is yet to be determined, all of whom testified about being sexually assaulted by Estabrooks while he was a police officer and one of whom, Mr. Hayes, also testified about being sexually assaulted by him while he worked at the City works department. The size of the Class and the extent of each Class Member’s injuries are matters to be determined later in the Class Proceeding if and when liability under one or more of the common issues has been proven.

I therefore find there is no merit to the City’s submission that the court can’t make a finding at this stage on this common issue. [paras. 74-75] [ 60 ] I am in respectful agreement with the judge’s reasons and finding of no merit. IV. Conclusion and Disposition [ 61 ] Estabrooks was a City employee when he sexually abused, during working hours as a police officer, the claimants in the underlying class action.

Moreover, the record shows the connection between the City and Estabrooks’ wrongdoing was sufficiently strong to justify the imposition of vicarious liability for those sexual assaults and any causally related harm.

In my respectful view, the common issues judge committed reversible error in answering “no” to the following certified common question: “Is the City vicariously liable for the actionable physical, mental, and/or sexual harm perpetrated by Kenneth Estabrooks […] between 1953 and 1975 when he was a police officer?” Accordingly, I would allow the appeal, set aside the decision under appeal and answer the question affirmatively. [ 62 ] The City contends in its last Statement of Defence that the action was commenced after the expiry of the applicable limitation period.

The common issues judge did not settle the question. The Court will hear the parties on the point on September 28, 2023 at 2:00 p.m. (see Case Management Order, Hayes v. City of Saint John (#2) , 2023 NBCA 66 ). [ 63 ] The issue of costs for all or part of the proceedings, at trial and on appeal, stands un-addressed by the parties. Given the multiplicity of the closely related proceedings relevant to the resolution of the case, it behooves the Court to exercise its discretion in favour of retaining jurisdiction to hear the parties regarding costs, and to make an appropriate determination.

Version française de la décision de la Cour rendue par LE JUGE DRAPEAU

I. Introduction et vue d’ensemble [1] À de nombreuses occasions au cours de sa longue carrière de membre du corps de police deThe City of Saint John (la Ville), Kenneth Estabrooks a utilisé l’autorité que lui conférait son poste et sa situation professionnelle pourcommettre des agressions sexuelles contre des enfants vulnérables et influençables, notamment contre l’appelant, Robert Hayes. LorsqueM.

Estabrooks se livrait aux actes d’agression sexuelle, qui souvent se trouvaient parmi les actes les plus répugnants dans la gamme desagressions sexuelles, il portait l’uniforme et l’insigne de policier que lui avait remis la Ville, il avait la charge d’une voiture de patrouillede la Ville, et l’arme de poing que lui avait confiée la Ville était invariablement visible et toujours à portée de la main. En 1975, uneenquête menée par le corps de police sur des plaintes déposées par deux adolescents a confirmé que M.

Estabrooks s’était livrérécemment à des conduites [TRADUCTION] « inappropriées » d’ordre sexuel pendant ses heures de travail comme policier. Enconséquence, M. Estabrooks a été muté au Service des travaux publics de la Ville à

titre de manœuvre. Peu après, il a commis desagressions sex

[…]