A Quebec court certified a class action alleging similar claims in 2019
A lawsuit brought by three current and former Jehovah’s Witnesses who allege they were sexually abused as minors by adult congregation members cannot proceed as a class action, the Ontario Court of Appeal has ruled.
In its Sept. 23 decision in Gutierrez v. Watchtower Bible and Tract Society of Canada, a three-justice panel explained that the lawsuit failed to satisfy any of the criteria under Ontario’s Class Proceedings Act. Under the provincial law, a lawsuit must meet five criteria – including providing a cause of action and proving that a class action is the preferable method for resolving the conflict – to be certified as a class action.
The OCA’s conclusion affirms a ruling by the Ontario Superior Court of Justice, which declined to certify the lawsuit back in 2024. In addition to the lawsuit’s failure to satisfy the CPA’s certification criteria, the lower court had concluded that the plaintiffs should have, but failed to, name an unincorporated association called the Canada Branch as a defendant in the case.
The Canada Branch consists of a small group of men responsible for overseeing the religious activities of Jehovah’s Witnesses in Canada. One of the branch’s departments is tasked with providing members guidance on congregational activities, reporting child abuse to the authorities, and keeping a permanent record of all allegations or reports of sexual abuse involving members. However, the branch does not have property or bank accounts.
The plaintiffs appealed the 2024 ruling, telling the OCA that the lower court should have given them the chance to amend their lawsuit to include the Canada Branch as a defendant.
But the OCA panel dismissed the plaintiffs’ argument, calling it “disingenuous.”
The appellate court said that although the plaintiffs were represented by “experienced class counsel,” they neither sought to amend their lawsuit to include the Canada Branch via their certification factum nor did they do so during oral argument. Instead, the plaintiffs chose to sue the Watchtower Bible and Tract Society of Canada, which owns and manages the property used by Jehovah’s Witnesses in Canada, pays allowances and salaries to various members, and enters into contracts on behalf of the Canada Branch.
This choice is grounded in “strategic reasons,” the OCA said. “The Society has assets, while the Branch does not, and the appellants would have had to sue the individual members of the Canada Branch rather than the entity as such.”
The lower court had said that even if it granted the plaintiffs permission to add the Canada Branch to their complaint, they would have still failed the certification test.
The OCA said the lower court’s reasoning was sound.
The three plaintiffs filed their lawsuit in 2017, each alleging they were sexually abused or assaulted when they were minors by adult Jehovah’s Witnesses. None of the assaults was alleged to have taken place on property belonging to the Watchtower Bible and Tract Society of Canada or during events organized or overseen by the society.
However, the plaintiffs argued the society should have taken steps to sanction the alleged abusers or report them to the police. They filed the proposed class action on behalf of all current or former Jehovah’s Witnesses who were sexually abused, as minors, by another Jehovah’s Witness.
In 2019, a Quebec court certified a similar class action against the Watch Tower Bible and Tract Society of Pennsylvania and its Canadian branch.
In the Ontario case, the Ontario Superior Court of Justice said the plaintiffs’ central argument appeared to be that the society or the Canada Branch “had a duty of care to exercise its ecclesiastical power (its authority as a Jehovah’s Witness church organization) to prevent harm to the children of Jehovah’s Witness congregants.”
However, the OCA said in its decision this week that “spiritual authority alone is insufficient to ground a duty of care.”
In a statement Friday, David Elman, a Borden Ladner Gervais LLP partner who represented the society, called the OCA’s ruling significant for several reasons. “In particular, the Court of Appeal has confirmed that spiritual authority alone is insufficient to ground a duty of care,” Elman noted.
Bryan McPhadden, one of the lawyers representing the plaintiffs, declined to comment immediately on the specifics of the decision, stating that he and his co-counsel are reviewing it and considering next steps.
