The New Brunswick Court of Appeal recently held in Hayes v. The City of Saint John, 2023 NBCA 79 ("Hayes"), that municipalities are vicariously liable at common law for torts committed by its police officers during working hours, but not in the execution of core law enforcement functions. This decision clarifies centuries-old jurisprudence regarding the nature of the relationship between municipalities and police officers in carving out a narrow exception to the general common law immunity enjoyed by government entities in respect of police actions.
Hayes is a certified class proceeding brought in 2013 on behalf of the victims of Kenneth Estabrooks, a City of Saint John police officer who was convicted of sexually abusing vulnerable children in Saint John from the '50s to the '70s. As Estabrooks had already died before 2013, the action was initially brought in negligence and vicarious liability against the City of Saint John (the "City") and its police board. The police board was later dropped as a defendant after the lower court decided it was not an entity that could be sued at law.
Although New Brunswick's Police Act, S.N.B. 1977, c. P-9.2, currently imposes statutory vicarious liability on municipalities for the tortious conduct of its police officers, Estabrooks committed his assaults prior to the enactment of this provision in 1977. As the provision did not apply retrospectively, the plaintiff had to establish that vicarious liability at common law should be imposed.