"Not Litigation in the Ordinary Course": New Brunswick Court Comments on Individual Issues Procedures in Historical Abuse Class Action

In Hayes v. The City of Saint John, 2025 NBKB 58 ("Hayes"), the New Brunswick Court of King's Bench considered two competing individual issues protocols ("IIPs") to determine the remaining individual issues in a historical sexual abuse class action after liability to the Class had been established.[1]

The court rejected both parties' proposed IIPs, instead drafting its own protocol which it provisionally ordered pursuant to section 29 of New Brunswick's Class Proceedings Act[2] (equivalent to section 25 of Ontario's Class Proceedings Act, 1992[3]) subject to providing the parties an opportunity to provide input.[4]

Justice Stephenson's reasons reflect the fact that there is no cookie-cutter approach to fashioning an IIP. Class proceedings legislation provides the court with broad discretion to fashion a bespoke process that is sensitive to the specific needs of the class in each case, short of delegating the determination of individual issues to a third party. 

The class in Hayes includes survivors of historical childhood sexual abuse committed by a City of Saint John police officer between 1953 and 1975. With liability established, each party proposed a process to determine for each class member whether they were abused, whether their claim had expired, and the individual damages they should be awarded for the abuse.[5]

The Defendant proposed an IIP that Justice Stephenson characterized as "litigation in the ordinary course", with each party bearing its own costs. The Plaintiff proposed a trauma-informed process to be paid for entirely by the Defendant, involving assessments by court-appointed psychological experts; pre-determined limits on the Defendant's rights to cross-examination and ability to call additional evidence; and threshold eligibility issues to be determined by a court-appointed administrator.[6] 

Justice Stephenson split the difference in his provisional IIP. In drafting his own IIP, Justice Stephenson was guided by the overriding consideration of the need to ensure an expeditious resolution given the advanced age of the class:

[13]   So we need an IIP to assess and address the claims of at least 50 and perhaps many more claimants. The claims pertain to sexual abuse that happened 50 – 72 years ago to young people who were targeted because they were vulnerable and are now coming before the Court by way of an action that is almost 12 years old. Kenneth Estabrooks’ repugnant behaviour has been known to representatives of the Defendant for many years. The record reflects that they chose initially to ignore it (apparently to save Kenneth Estabrooks’ pension) and thereafter, as was their entitlement, to deny legal responsibility for same. In these circumstances, it would not be fair, reasonable or in the interests of justice to permit the normal litigation process, with its associated delays and procedural complexities, to run its course for each claim. That would take many years that, given the passage of time, reason and common sense tells us many of Kenneth Estabrooks’ victims simply do not have.[7]

The court ultimately accepted the Plaintiff's proposals regarding costs and enlisting the assistance of third-party experts and administrators but held that hard limitations on the Defendant's procedural rights would be "inconsistent" with Ontario's individual issues jurisprudence,[8] procedural fairness and the interests of justice.[9] Instead, the provisional IIP would require the Defendant to seek leave to cross-examine claimants or exercise ordinary discovery rights – effectively imposing a presumption against "litigation in the ordinary course".

An interesting aspect of the decision is the Court's decision to impose a two-year claims period pursuant to section 29(4) of New Brunswick's CPA despite there being no limitation period on sexual assault claims pursuant to section 14.1 of New Brunswick's Limitation of Actions Act.[10] Justice Stephenson seemed to address this conflict by expressly providing that the two-year deadline was "subject always to section 29(5) of [New Brunswick's CPA]", which permits class members to make late individual claims with leave of the court.[11]

The tension between statutory limitation exceptions and class proceedings legislation has yet to be addressed by Ontario courts. While the Supreme Court of Canada has held limitation provisions should prevail in such conflicts,[12] Hayes indicates Ontario courts may be reluctant to order IIPs with no time limitation.

Key Takeaways

There are several key takeaways from this decision:

1.     Where liability has been established, the Defendant should bear the cost of the procedures to determine the remaining individual issues, subject to its ability to recover costs from unsuccessful individual issues claimants.[13]

2.     Where the class is vulnerable and/or advanced in age, there will be good reason for the court to dispense with ordinary procedural steps and involve third-parties in order to achieve expeditious and trauma-informed access to justice.[14]

3.     The court's statutory discretion (under s. 25 of Ontario's CPA) stops short of delegating final decision-making authority on the individual issues.[15] Justice Stephenson followed Justice Perell's IIP decisions in Brazeau v. Canada (“Brazeau”)[16] and Lundy v. Via Rail Canada Inc (“Lundy”)[17] in drawing a bright line:

a.     absent agreement by the parties, the Court cannot outsource its adjudicative function or set damages based on a mechanical application of an established schedule (see Brazeau at paragraphs 86 and 135 and Lundy at paragraph 49); and  

b.     the Court has the ability to appoint managers, administrators and experts and to direct who is responsible for the payment of same where it considers such appointments necessary to facilitate the fair and expeditious determination of a proceeding (see Brazeau at paragraphs 118-119).[18]

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.