Law360 Canada (September 25, 2026, 5:44 PM EDT) -- The Ontario Court of Appeal has upheld the denial of certification of a proposed class action against a Canadian Jehovah’s Witness corporation over alleged childhood sexual abuse by congregation members.
In
Gutierrez v. Watchtower Bible and Tract Society of Canada, 2026 ONCA 665, released Sept. 23, Justice Sally Gomery held that the plaintiffs had not pleaded facts connecting the Society to the alleged assaults that could establish a duty of care.
“Spiritual authority alone is insufficient to ground a duty of care,” she wrote, finding it was not reasonably foreseeable that a religious organization with no alleged direct responsibility for the children would be liable for failing to protect them from assaults by adult congregants outside places or activities it oversaw.
The appellants, Christian Gutierrez, Sandra Hall and Melissa White, are or were Jehovah’s Witnesses. They allege that they were sexually assaulted by congregation members when they were children.
Hall alleged that after she reported the assaults to congregation Elders, they accused her of seducing her assailant and disfellowshipped her. The appellants also alleged that the organization discouraged members from reporting abuse to police and generally would not treat an allegation as established without a confession or a witness other than the victim.
The appellants commenced a class action against the respondent, the Watchtower Bible and Tract Society of Canada, which owns and manages property used by Jehovah’s Witness congregations and serves as a communications arm for the organization.
They alleged that the Society was directly or vicariously liable for their damages and sought to represent current or former Jehovah’s Witnesses who alleged they were sexually assaulted in Canada as minors by another Jehovah’s Witness, including appointed leaders known as Elders.
In
Gutierrez v. Watchtower Bible and Tract Society of Canada, 2024 ONSC 3837, a motion judge found that the action was fatally flawed because it did not name the Canada Branch, an unincorporated association that oversees religious activities in Canada.
The motion judge held that the branch was a necessary party and that adding its members or representatives as defendants would not cure the failure to meet the certification criteria.
The appellants argued on appeal that the motion judge had improperly assessed the merits of their claim and should have allowed them to amend their pleading.
Justice Gomery noted the motion judge’s finding that the Jehovah’s Witnesses’ Governing Body in New York appointed the small group of men who form the Canada Branch. The Society was, for all practical purposes, “the backroom operation of the Canada branch,” which has no assets or source of income, the motion judge found.
She highlighted the motion judge’s finding that the Branch’s Service Department, rather than the Society, was responsible for providing guidance to congregations, reporting child abuse to authorities and keeping records of abuse allegations involving Jehovah’s Witnesses.
Justice Gomery noted that the appellants had not sought leave to add members of the Branch, despite being represented by experienced class counsel.
“As the motion judge observed, they sued the Society rather than Canada Branch for strategic reasons. 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,” she wrote.
The court also found no error in the conclusion that the negligence claim did not disclose a cause of action. The appellants had alleged that the organization allowed “known or accused abusers to remain in positions of trust and authority,” enabling them to continue to do wrong.
Justice Gomery noted that the pleading did not allege that the Society or the other religious bodies provided facilities, services or programs for the children or had direct contact with them.
She also noted that the appellants had not alleged that an assault occurred at a location or event overseen by the Society or the Elders.
The court also upheld the findings that the claim did not disclose a breach of fiduciary duty or a basis for vicarious liability and that individual actions were preferable to a class proceeding.
She highlighted the motion judge's finding that each class member would have to participate in a further individual hearing after any common issues hearing.
“He concluded that doing so (certifying the action as a class proceeding) would actually decrease class members’ meaningful access to justice. I would defer to this
determination,” Justice Gomery wrote.
She dismissed the appeal.
Justices Jonathon George and Jill Copeland concurred in the decision.
Counsel for the respondent, David Elman of Borden Ladner Gervais LLP, said the court had issued a “significant decision for the respondent on several issues.”
“In particular, the Court of Appeal has confirmed that spiritual authority alone is insufficient to ground a duty of care,” he told Law360 Canada in an email.
Counsel for the appellants were Bryan McPhadden of McPhadden Samac Tuovi LLP and John McKiggan of McKiggan Hebert Lawyers. They were not immediately available for comment.
Robert Stefanelli of Borden Ladner Gervais LLP also acted as counsel for the respondent.
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