Ontario Court of Appeal: Denies Gutierrez v. Watchtower Class Action Certification

• The Ontario Court of Appeal ruled that a proposed class action, Gutierrez v. Watchtower Bible and Tract Society of Canada, alleging sexual abuse by Jehovah's Witnesses members, cannot proceed.
• The lawsuit failed to meet any of the five criteria required for certification under Ontario's Class Proceedings Act.
• A key issue was the plaintiffs' failure to name the 'Canada Branch,' an unincorporated association, as a defendant, instead suing the asset-rich Watchtower Bible and Tract Society of Canada.
• The OCA dismissed the plaintiffs' argument for amendment, stating that even if the Canada Branch had been included, certification would still have been denied.
• This decision highlights the strict application of class action certification criteria and the importance of correctly identifying defendants in Ontario, especially for religious organizations.

This ruling provides critical guidance for lawyers on the strict application of class action certification criteria under Ontario's Class Proceedings Act, particularly regarding the identification of proper defendants when dealing with complex organizational structures like religious bodies.

The Ontario Court of Appeal (OCA) has ruled that a proposed class action, Gutierrez v. Watchtower Bible and Tract Society of Canada, alleging sexual abuse by adult members against minors within the Jehovah's Witnesses community, cannot proceed. In its September 23 decision, a three-justice panel determined that the lawsuit failed to satisfy any of the mandatory criteria outlined in Ontario's Class Proceedings Act (CPA), thereby affirming an earlier decision by the Ontario Superior Court of Justice from 2024 that also denied certification. Three plaintiffs, identified as current or former Jehovah's Witnesses, initiated the lawsuit in 2017. They each claimed to have been sexually abused or assaulted as minors by adult members of the religious organization. The proposed class action sought to represent all current or former Jehovah's Witnesses who experienced sexual abuse as minors by another member. Notably, none of the alleged assaults were claimed to have occurred on property owned by the Watchtower Bible and Tract Society of Canada or during events organized or overseen by the Society itself. The plaintiffs' central contention was that the Society, or the Canada Branch, bore a duty of care to exercise its ecclesiastical authority to prevent harm to children, and should have taken steps to sanction alleged abusers or report them to law enforcement. This ruling highlights the stringent requirements for class action certification in Ontario, particularly when dealing with complex organizational structures and the identification of appropriate defendants.

Under the provincial Class Proceedings Act, a lawsuit must meet five distinct criteria to be certified as a class action, including establishing a valid cause of action and demonstrating that a class action is the preferable method for resolving the dispute. The OCA found that the Gutierrez v. Watchtower class action certification Ontario failed to meet these fundamental requirements. A significant aspect of the lower court's decision, which the OCA upheld, concerned the plaintiffs' failure to name the appropriate defendant. The Ontario Superior Court of Justice had previously concluded that the plaintiffs should have included an unincorporated association known as the Canada Branch as a defendant. This Canada Branch, comprising a small group of men, oversees the religious activities of Jehovah's Witnesses in Canada. Its departments provide guidance on congregational activities, report child abuse to authorities, and maintain permanent records of sexual abuse allegations. However, the Canada Branch does not possess property or bank accounts. Instead, the plaintiffs chose to sue the Watchtower Bible and Tract Society of Canada, an entity that owns and manages property used by Jehovah's Witnesses, pays allowances and salaries, and enters into contracts on behalf of the Canada Branch, crucially, it possesses assets. On appeal, the plaintiffs argued that the lower court should have permitted them to amend their lawsuit to include the Canada Branch. However, the OCA panel dismissed this argument as "disingenuous," noting that despite being represented by experienced class counsel, the plaintiffs neither sought to amend their lawsuit in their certification factum nor during oral arguments. The appellate court concurred with the lower court's reasoning that even if the Canada Branch had been added, the lawsuit would still have failed the certification test, underscoring the strategic, but ultimately unsuccessful, decision to target the asset-rich Society over the unincorporated Branch.

This ruling provides critical guidance for lawyers on the strict application of class action certification criteria under Ontario's Class Proceedings Act, particularly regarding the identification of proper defendants when dealing with complex organizational structures like religious bodies. It underscores the importance of correctly naming legal entities, distinguishing between incorporated societies and unincorporated associations, and satisfying all statutory requirements for certification from the outset to avoid dismissal. The OCA's decision reinforces that strategic considerations regarding a defendant's assets do not supersede the fundamental legal requirements for class action certification. The outcome in Ontario stands in contrast to a similar Jehovah's Witnesses sexual abuse lawsuit in Quebec. In 2019, a Quebec court certified a comparable class action against the Watch Tower Bible and Tract Society of Pennsylvania and its Canadian branch, highlighting potential jurisdictional differences in the application of class action criteria across Canada. This case serves as a significant precedent for religious organization class action Canada, emphasizing the rigorous standards for establishing a certifiable class in Ontario and the necessity of meticulously addressing all procedural and substantive requirements.

This ruling provides critical guidance for lawyers on the strict application of class action certification criteria under Ontario's Class Proceedings Act, particularly regarding the identification of proper defendants when dealing with complex organizational structures like religious bodies. It underscores the importance of correctly naming legal entities, distinguishing between incorporated societies and unincorporated associations, and satisfying all statutory requirements for certification from the outset to avoid dismissal.

Source: Original reporting via Canadian Lawyer Magazine