d!e.-l5"33!'?> gl-n~ p::tj DEC 4 2,013 ~ i-~ ROBERT HAYES -and-

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1 IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: t" "'1'j 070 CUE::: 's ee..1ch,. ~e :'1< I SA\l~'T.IC;1N -V =- gl-n~ p::tj DEC 4 2,013 ~ i-~ l.." I) 0 m-c I.. I., U} ~, m d!e.-l5"33!'?> COUR DU BANC DE LA REINE DE NOUVEAU-BRUNSWICK DIVISION DE PREMIERE INSTANCE. CIRCONSCRIPTION JUDICIAIRE DE SAINT JOHN ENTRE: COUR DU BANe DE LA REINE GREFFIER I SAINT-JEAN ROBERT HAYES on behalfof himself and other class members -and- PLAINTIFF (DEMANDEUR) THE CITY OF SAINT JOHN, a body corporate by Royal Charter, confirmed and amended by Acts ofthe Legislative Assembly ofthe Province ofnew Brunswick, and THE SAINT JOHN POLICE COMMISSION and THE SAINT JOHN POLICE DEPARTMENT DEFENDANTS (DEFENDEURS).

2 To: NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED (Form 16A) The Defendants AVIS DE POURSUITE ACCOMPAGNE D'UN EXPOSE DE LA DEMANDE (Formule 16A) Destinataire: LEGAL PROCEEDINGS HAVE BEEN COMMENCED AGAINST YOU BY FILING THIS NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED. Ifyou wish to defend these proceedings, either you or a New Brunswick lawyer acting on your behalfmust prepare your Statement ofdefence in the form prescribed by the Ru1es ofcourt and serve it on the Plaintiffor its lawyer at the address shown below and, with proofofsuch service, file it in this Court Office, together with the filing fee of$50, (a) ifyou are served in New Brunswick, WITHIN 20 DAYS after service on you of this Notice ofaction With Statement of Claim Attached, or (b) ifyou are served elsewhere in Canada or in the United States ofamerica, WITHIN 40 DAYS after such service, or (c) ifyou are served anywhere else, WITHIN 60 DAYS after such service. Ifyou fail to do so, you may be deemed to have admitted any claim made against you, and without further notice to you, rudgment MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE. You are advised that: (a) you are entitled to issue documents and PARLE DEPOT DU PRESENT AVIS DE POURSUITE ACCOMPAGNE D'UN EXPOSE DE LA DEMANDE, UNE POURSUITE rudiciaire A ETE ENGAGEE CONTRE VOUS. Si vous desirez presenter une defense dans cette instance, vous-meme ou un avocat du Nouveau-Brunswick charge de vous representer devrez rediger un expose de votre defense en la forme prescrite par les Regles de procedure, Ie signifier au demandeur ou ason avocatal'adresse indiquee ci-dessous et la deposer au greffe de cette Cour avec un droit de depot de $50 et une preuve de sa signification: (a) DANS LES 20 JOURS de la signification qui vous sera faite du present avis de poursuite accompagne d'un expose de la demande, si elle vous faite au Nouveau-Brunswick ou (b) DANS LES 40 JOURS de la signification, si elle vous est faite dans une autre region du Canada ou dans les Etats Unis d'amerique Oll (c) DANS LES 60 JOURS de la signification, si elle vous faite ailleurs. Si VOllS omettez de la faire, vous pourrez etre repute avoir admis toute demande formulee contre vous et, sans autre avis, JUGEMENT POURRA ETRE RENDU CONTRE vaus EN VOTRE ABSENCE.

3 present evidence in the proceeding in English or French or both; (b) the Plaintiff intends to proceed in the English language; and (c) your Statement ofdefence must indicate the language in which you intend to proceed. Sachez que: (a) vous avez Ie droit dans la presente instance, d'emettre des documents et de presenter votre preuve en fran9ais, en anglais ou dans les deux langues; (b) Ie demandeur a l'intention d'utiliser la langue anglais; et (c) l'expose de votre defense doit indiquer la langue que vous avez l'intention d'utiliser. If you pay to the Plaintiff or its lawyer the amount ofits claim, together with the sum of$loo.oo for its costs, within the time you are required to serve and file your Statement ofdefence, further proceedings will be stayed or you may apply to the Court to have the action dismissed. THIS NOTICE is signed and sealed for the Court of Queen's Bench byo(v~ilc1a..j.[1$/1,\0 Clerk ofthe Court at Saint John, New Brunswick, on the Si, dans Ie delai accorde pour la signification et Ie depot de l'expose de votre defense, vous payez au demandeur ou a son avocat Ie montant qu'il reclame, plus $ pour couvrir ses frais, il y aura suspension de l'instance ou vous pourrez demander ala cour de rejeter l'action. CET AVIS est signe et scelle au nom de la Cour du Banc de la Reine par, greffier de la Cour a Nouveau Brunswick, ce, Sgd~lUnandaJ.Eva~ Clerk ofthe Court Judicial District ofsaint John ( 'r.. -: '.- )

4 -' STATEMENT OF CLAIM Representative Plaintiff 1. The Plaintiff, Robert Hayes, resides in Saint John, in the Province ofnew Brunswick. The Plaintiffwas sexuallyassaultedby Kenneth Estabrooks ("Estabrooks") starting when he was a minor and continuing for years thereafter. 2. The Plaintiffseeks to certify this action as a class proceeding and pleads The Class Proceedings Act, RSNB 2011, C125 as the basis for such certification. The Plaintiffstates thatthere is an identifiable class that would be fairly and adequately represented by the Plaintiff; the Plaintiffs claim raises common issues; and a class proceeding would be the preferable procedure for the resolution ofsuch common issues. Defendants 3. The Defendant, Cityof Saint John ("the City'~) is a body corporate by Royal Charter confirmed and amended by the Acts ofthe Legislative Assembly ofthe Province ofnew Brunswick. At all material times hereto the City appointed the Saint John Police Commissionand employed members ofthe Saint John Police Department. 4. The Defendant, Saint John Police Commission ("the Commission") is the governing authority for the Saint John Police Department pursuant to the Police Act, SNB 1977, CP-9.2. The Commission has the responsibility to maintain, supervise and provide oversight to the Saint John Police Department. 5. The Defendant, the Saint John Police Department ("SJPD") is a municipal police force established under the Police Act. The SJPD operates under the oversightof the Commission and all members ofthe SJPD are employed by the City. Class Members 6. The Plaintiffbrings this action on his own behalf, and on behalfofthe class of persons who were sexually assaulted by Kenneth Estabrooks ("Estabrooks") and such other persons or class ofpersons, as this Honourable Court recognizes or directs. Class Period 7. The proposed class period covers the years 1953 to 1998.

5 Kenneth Estabrooks 8. Kenneth Estabrooks ("Estabrooks") was a member ofthe Saint John Police Force and a Saint John City Works employee. At all material times hereto, Estabrooks was employed by the City. 9. Estabrooks used his authority as a police office and city employee to abduct, confine and sexually assault hundreds ofchildren and minors. 10. Fordecades, beginning in 1953 and continuing thereafter, Estabrooks molested and sexually assaulted boys and girls including, but not limited to, the Plaintiff. 11. In 1975, two (2) boys complained to SJPD that Estabrooks was sexually. assaulting them. SJPD investigated and Estabrooks confessed to the sexual assaults. 12. No criminal charges were laid and Estabrooks was transferred to ajob with the City Works Department ofthe City. 13. Estabrooks continued to sexually abuse and molest minors including, but not limited to, the Plaintiff. 14. In 1998, Estabrooks was charged with sexually assaulting five (5) boys and one (1) girl over a period ofthree (3) decades between 1957 and In 1999, Estabrooks was convicted offour (4) charges ofsexual assault and was sentenced to six (6) years in prison. Authority ofthe City 16. The City, through the Commission and the Chiefofthe SJPD, hired, trained, employed, assigned, supervised, and had the power to discipline Estabrooks. 17. The Plaintiffstates that as a police officer Estabrooks had a great deal ofpower, authority, and respect within the City of Saint John. The Plaintiffstates that Estabrooks exercised his power and authority over the Plaintiff and the Class Members. 18. The Plaintiffstates that the SJPD and the Commission as representatives ofthe justice system owed a fiduciary duty to the Plaintiffand the Class Members. 19. The Plaintiffstates that Estabrooks' power, authority, and fiduciary duty over the Plaintiffand the class members were created and encouraged by the City, the Commission and the SJPD.

6 Knowledge ofestabrooks Sexual Abuse 20. The City, the Commission, SJPD and social workers employed by the City received complaints about Estabrooks' sexual abuse and failed to investigate and/or act on such complaints. 21. The City, the Commission and SJPD kept the complaints against Estabrooks secret and failed to warn and protect children within the City ineluding the Class Members that Estabrooks was a dangerous sexual predator. 22. The City, the Commission and SJPD knew or ought to have known that Estabrooks had a history ofsexual assault, and knew or out to have known that Estabrooks posed a real risk ofsexually assaulting the Plaintiff, the Class Members and other children within the City. 23. The Plaintiffstates that for decades the City, the Commission and SJPD 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 children in the City. 24. The Plaintiffstates that the actions ofthe City, the Commission, and SJPD amounted to obstruction ofjustice and breach ofthe fiduciary duty owed by the City, the Commission and SJPD to the Plaintiffand the Class Members. Sexual Assaults Estabrooks 25. While acting in his capacity as a police officer and city employee Estabrooks sexually assaulted and battered the Plaintiffand the Class Members. 26. The Plaintiffstates that the sexual assaults and batteries and consequent injuries to the Plaintiffand the Class Members were caused by the systemic negligence, fraud, breach oftrust, and breach offiduciary duty ofthe City, the Commission and SJPD. 27. The Plaintiffstates that the City, the Commission and SJPD are all directly and vicariously liable to the Plaintiffand the Class Members for Estabrooks' predatory sexual abuse. Particulars ofdefendants' Breaches 28. The Plaintifffurther states that the sexual assaults and batteries all.d resulting injuries to the Plaintiffand the Class Members were caused by th.e systemic negligence, infliction ofmental distress, breach oftrust, fraud, breach ofa nondelegable duty and breach offiduciary duty ofthe City, the Commission and SJPD, and ofthe servants, agents, and employees ofthe City, the Commission and SJPD, the particulars ofwhich are as follows:

7 k. When the City, the Commission and SJPD became aware ofestabrooks sexual assaults on children the City, the Commission and SJPD failed to prevent any further occurrences ofsexual assaults when the City, the Commission and SJPD knew or ought to have known that their failure to do so would result in a risk ofinjury to the Plaintiffand the Class Members; 1. Such further and other causes ofsystemic negligence, breach oftrust, breach offiduciary duty and breach ofnon-delegable duty as the Plaintiff and the Class Members may advise prior to trial ofthis matter. Liability ofthe Defendants 29. The Plaintiffand the class members state that the City, the Commission and SJPD are liable as Estabrooks employer, supervisor and principle when Estabrooks, at all material times hereto, was acting as the City, the Commission and SJPD's agent or employee. Damages 30. As a result ofthe sexual assaults and batteries by Estabrooks, the Plaintiffand the Class Members suffered serious, lasting and permanent injuries including, in the alternative but not limited to; a. Nervous shock; b. Anxiety; c. Se~ual dysfunction; d. Post traumatic stress disorder; e. Depression; f. Emotional trauma; g. Decreased social ability; h. Decreased income earning ability 1. Insomnia; J Low selfesteem; k. Impaired interpersonal relationships; 1. Psychological injuries; m. Such further and other injuries as the Plaintiffand the class members may advise prior to trial ofthis matter. 31. The Plaintiffand the Class Members have sustained and will continue to sustain pain and suffering, loss ofenjoyment oflife, and loss ofamenities.

8 32. The Plaintiffand the Class Members state that the City, the Commission and SJPD willfully or fraudulently concealed its knowledge ofestabrooks sexual assaults and his propensity ofviolence towards children, thus preventing the Plaintiffand the Class Members from taking action against the City, the Commission and SJPD. 33. The Plaintiffand the Class Members' further state that, as a result ofthe injuries caused by the sexual assaults, they were not reasonably capable ofcommencing legal proceedings because oftheir physical, mental and/or psychological conditions resulting from the sexual assaults. Aggravated and Punitive Damages 34. The Plaintiffand the Class Members' state that the Defendants' had knowledge of Estabrooks sexual deviancy and criminal misconduct and discouraged Estabrooks victims from pursuing criminal charges. Despite this knowledge, the Defendants' continued to allow Estabrooks to perpetrate grievous harm to the Plaintiffand the Class Members. 35. The Plaintiffand the Class Members' state that the Defendants' conduct was disgraceful, repugnant and reprehensible and the City, the Commission and SJPD have behaved with arrogance and high-handedness and have shown a callous disregard and complete lack ofcare for the Plaintiffand the Class Members. 36. The Plaintiffand the Class Members state that the City, the Commission and SJPD was or should have been conscious ofthe probable consequences oftheir actions and the damages such actions would cause to the Plaintiffand the Class Members including but not limited to the probability that Estabrooks' victim's might commit suicide as a result ofestabrooks' sexual assaults. 37. The Plaintiffand the Class Members state that the City, the Commission and SJPD are liable for the suicidal deaths ofestabrooks' victims. 38. The Defendant's actions were deliberate and intended to protect the reputation of the City, the Commission and SJPD rather than the safety ofchildren in Saint John. In the circumstances aggravated and punitive damages are necessary. Relief Sought 39. Therefore, the Plaintiffand Class Members claim against the Defendants and each ofthem, jointly and severely: a. An apology and declaration ofthe legal responsibility ofthe City, the Commission and SJPD for the actions ofestabrooks and the injuries suffered by the Plaintiffand the class members;

9 b. A validation and compensation program to privately assist Estabrooks victims; c. General damages; d. Special damages; e. Loss ofincome and ability to earn income; f. Aggravated damages; g. Punitive damages; h. Costs; 1. Pre-judgment interest; J. Such further and other relief as this Honourable Court may see fit. 1C DATED at Halifax, in the Halifax Regional Municipality, Province ofnova Scotia, this 1-( day of December, '//1,,&/2/]~ ofilfa. ckiggan, Q.C. McKiggan Hebert Spring Garden Road Halifax, NS B3J 1H6 Tel: IFax: SOLICITOR FOR THE PLAINTIFF AND THE CLASS MEMBERS