Ontario's Court of Appeal upholds refusal to certify Jehovah's Witnesses child-abuse class action against Watchtower Canada

The Court of Appeal for Ontario on 23 September 2026 dismissed an appeal by three current or former Jehovah's Witnesses who had asked the courts to let them sue Watchtower Bible and Tract Society of Canada as a class action over childhood sexual abuse they say they suffered at the hands of other Witnesses. The three judges, Justices J. George, J. Copeland and S. Gomery, agreed unanimously. Justice Gomery wrote the reasons.^[1]

The appellants are Christian Eduardo Gutierrez, Sandra Hall and Melissa White. They were appealing a decision of Justice Paul M. Perell of the Ontario Superior Court of Justice, dated 4 July 2024, which refused to "certify" their lawsuit. The Court of Appeal found no error in that refusal and ordered $30,000 in costs, a sum paid toward the winning side's legal expenses, in the Society's favour.^[1]

The ruling ends, at this court, a proposed lawsuit on behalf of Witnesses who say they were abused as minors in Canada since 1 January 1960, with $26,000,000 in damages claimed. The court held that the lawsuit as written disclosed no valid legal claim against the Society. It upheld Justice Perell's finding that a class action was not the preferable procedure, and left in place his finding, which the appellants did not challenge, that a necessary party was missing from the case.^[1]

What a class action is, and what "certification" means

A class action is a single lawsuit brought by a few named people, the "representative plaintiffs," on behalf of a much larger group with similar claims. In Ontario, such a case cannot go forward as a class action until a judge approves it under the Class Proceedings Act, 1992. That approval is called certification.^[1]

Section 5(1) of the Act sets five tests. The written claim must disclose a legally valid basis to sue (a "cause of action"). There must be an identifiable class. There must be common issues. A class action must be the preferable way to resolve them. And there must be a workable plan for running the case.^[1]

The written claim is the statement of claim, also called the pleading: the document in which plaintiffs set out the facts they allege and the legal wrongs they say those facts amount to. The version before the court was an amended one, which the court calls the "amended statement of claim."^[1]

Justice Perell found that the appellants failed every one of the five tests. On appeal, the appellants had to show that he made a clear error that affected the result (in the court's words, a "palpable and overriding error") on each of them. The Court of Appeal examined two, the cause of action and the preferable procedure, found no error in either, and said it therefore did not need to look at the rest.^[1]

What the lawsuit alleges

The Court of Appeal summarised the allegations in the amended statement of claim at the start of its reasons. Its summary records what the appellants claim; the court made no finding on whether any of it is true.^[1]

According to the claim, Jehovah's Witnesses have over eight million members worldwide, with over 113,500 in Canada and an estimated 1,400 congregations. The claim alleges that the denomination has a strict hierarchy directed by the Governing Body, a group of men, eight at the time of the claim, who meet at its headquarters in New York.^[1]

Each congregation, the claim says, is led by four or five Elders appointed by the organization to lead it. It alleges that Elders hold "enormous power" over members, including the power to disfellowship them. Disfellowshipping is expulsion from the congregation; the claim says a disfellowshipped member is shunned by family, friends and fellow believers.^[1]

The claim describes how allegations of abuse are handled, as the plaintiffs see it. It says sexual abuse is treated as a sin and reviewed by a "judicial committee" of Elders. It says an allegation is not treated as established unless the accused confesses or there is at least one witness besides the victim. Because of how sexual assault usually happens, the plaintiffs say, this means a confession or two eyewitnesses is generally required. A victim whose allegation is rejected, they allege, may be found to have committed slander and face disfellowshipping.^[1]

The claim further alleges that organization policy bars Elders from reporting abuse allegations to police or other secular authorities, but requires them to report such allegations to the Society, which keeps the records "indefinitely." It alleges that the Society "has received thousands of reports of sexual abuse, including child sex abuse, and has failed to investigate and/or report the abuse to secular authorities, even when required by law."^[1]

The three appellants' own accounts

The claim alleges that each appellant was sexually assaulted as a minor by an adult Jehovah's Witness in Canada. It alleges that Mr. Gutierrez was abused by an Elder at a congregation it does not identify. It alleges that Ms. Hall was assaulted by an adult member of her parents' congregation in Mississauga, Ontario, who had earlier been an Elder in California, and that when the assaults were reported to her congregation's Elders, they accused her of seducing her assailant and disfellowshipped her. It alleges that Ms. White was assaulted by another minor, the son of an Elder at a congregation in Fort McMurray, Alberta, and later by an adult at another congregation.^[1]

The court noted that none of the assaults is alleged to have happened on Society property or at any event run or overseen by the Society or by Elders.^[1]

The proposed class had two main groups: people who say they were abused as minors in Canada by an Elder, and people who say they were abused as minors in Canada by any Jehovah's Witness. A third group covered family members. The court recorded that the appellants had conceded that certifying the second group, abuse by non-Elders, was "not practical" and "problematic", while not abandoning their position that it should be certified. The Court of Appeal said Justice Perell "ignored this concession", noting that the claims of all three appellants, and of most potential class members identified so far, were against non-Elders.^[1]

The missing defendant: the Canada Branch

The appellants sued only one defendant, the Society. The first problem Justice Perell identified, and one he held was by itself enough to deny certification, was that they had not sued the Canada Branch.^[1]

The two are different bodies. Drawing on evidence the Society put before the court, Justice Perell found that the Governing Body appoints a small group of men, the Canada Branch, to oversee the religious activities of Jehovah's Witnesses in Canada. Like the Governing Body, the Canada Branch is an unincorporated association: a group without legal capacity, which generally cannot be sued in its own name; its members, or representatives of them, must be named instead. The Canada Branch has no property or bank accounts.^[1]

The Society, by contrast, is a federal not-for-profit corporation that the Canada Branch set up in 1982. Justice Perell found that "the Society is for all practical purposes the backroom operation of the Canada branch, which has no assets or source of income". The Society owns and manages the property Witnesses use in Canada, pays an allowance to Branch members who live at the national headquarters, pays employees who serve the Branch, signs contracts for it, and publishes and distributes religious literature on its behalf.^[1]

But it is the Canada Branch, he found, that "oversees the religious activities of Jehovah's Witnesses in Canada". Its Service Department provides "scriptural guidance regarding congregational activities", is responsible for reporting child abuse to the authorities, and keeps a permanent record of all allegations or reports of sexual abuse involving Witnesses. The Canada Branch's Legal Department works for and represents both the Branch and the Society. The Court of Appeal noted that some of this evidence was inconsistent with facts alleged in the claim.^[1]

From this, Justice Perell concluded that the Canada Branch's participation was needed "to decide a dispute about what the Canada Branch has been doing to protect the children of Jehovah's Witness congregants since 1960." He also pointed out that the Society did not exist until 1982, 22 years into the proposed class period, and that the appellants had not named the association that came before it.^[1]

On appeal, the appellants did not challenge that analysis, so the finding that the Canada Branch was a necessary party was left undisturbed. They argued only that the judge should have let them amend their claim to add the missing parties. The Court of Appeal rejected this: "The appellants' submission is disingenuous." It said that the appellants, represented by experienced class-action lawyers, did not seek leave to amend their claim to add the Canada Branch, either in their written argument on the certification motion (their "factum") or in oral argument, and that, as the motion judge observed, they had sued the Society for strategic reasons: the Society has assets and the Branch does not.^[1]

The court added that Justice Perell had explained why an adjournment to add the Branch would serve no purpose: even with the Branch in the case, the certification motion would still have failed.^[1]

Why the claim disclosed no cause of action

A claim fails this test only if, assuming every fact in it is true, it is "plain and obvious" that it cannot succeed. The court described this as a high standard that requires reading the claim as generously as possible. It also described it as an important gatekeeping step.^[1]

The appellants pleaded three legal wrongs. The court rejected all three.

Negligence and the duty of care

To succeed in negligence, a plaintiff must first show that the defendant owed them a duty of care: a legal obligation to take reasonable care not to harm them. That depends on a close enough relationship between the two ("proximity") and on the harm being foreseeable.^[1]

Justice Perell noted that class actions have been certified against institutions that directly cared for the people harmed, such as residential schools, facilities for people with disabilities, prisons and secure psychiatric hospitals. This case was different, he found:

The Court of Appeal agreed. It said the claim does not mention any facilities, services or programs the Society, the Canada Branch or the Elders provided to children, or any direct contact between them and Witness children. It does not allege that any assault happened at an event they organized, or on property they owned, or that they employed the Elders or other adult members.^[1]

The appellants argued that the motion judge had "imposed a previously unknown requirement at law that institutional sexual abuse class action claims require proof that abuse happened in a building or property." The Court of Appeal answered: "The motion judge did no such thing." He had required only that the facts pleaded link the Society to some act or omission that could create a duty of care; abuse on its premises would have been one such link, but not the only possible one.^[1]

Distilled, the court said, the claim was that the Society should be liable "based primarily on the authoritarian and hierarchical belief system that it espouses." Its central holding on this point was one sentence:

The court compared the case to an earlier Ontario case, Cavanaugh v. Grenville Christian College, about abuse at a private religious boarding school. There, a class action went ahead against the school but not against the Anglican diocese associated with it. The Court of Appeal said the appellants' relationship to the Society and the Canada Branch, as pleaded, was "even more remote" than the relationship between the plaintiffs and the diocese in that case.^[1]

Fiduciary duty

A fiduciary duty is a heightened duty of loyalty, which the court described as "a duty to put the children's interests above their own." The court held that the claim alleged no facts that could create one. Apart from the general exercise of spiritual authority, it said, nothing pleaded put the appellants under the direct power of the Society or the organization. The claim does allege that Elders had direct power through their role in investigating and disciplining members, but the court said it contains "no allegations whatsoever" about the relationship between Elders and minors that could ground a fiduciary relationship.^[1]

Vicarious liability

Vicarious liability makes one party legally responsible for wrongs committed by another, as an employer can be for an employee. The Supreme Court of Canada's test has two parts. The relationship between the wrongdoer and the defendant must be close enough to make such a claim appropriate. And the wrong must be sufficiently connected to "the tortfeasor's assigned tasks" (the wrongdoer's assigned tasks) that it "can be regarded as a materialization of the risks created by the enterprise". The Court of Appeal held that, even if the appellants could meet the first part, their allegations could not meet the second.^[1]

The appellants relied on John Doe v. Bennett, in which the Supreme Court of Canada held a Roman Catholic corporation vicariously liable for a parish priest's abuse of minors. The Court of Appeal said that case turned on the fact that the priest's relationship with his victims arose in activities he organized and controlled as parish priest, and that there was no equivalent here. The claim does not allege that the Society or the Canada Branch assigned any specific tasks to non-Elders. Of the Elders' alleged duties, only their role on judicial committees had any connection to abuse, and the claim does not allege that any Elder was able to abuse a child because of that role.^[1]

Why a class action was not the preferable route

Justice Perell also found that, even if every other test had been met, a class action would not be the best procedure. The Court of Appeal said such findings deserve "heightened deference," especially from an experienced class-action judge.^[1]

Because the alleged abuse involved no common perpetrator, activity or location, Justice Perell reasoned that separate trials for each person were inevitable after any shared trial. He found that "[a] common issues trial preceding the individual issues phase is a retardant to access to justice and the preferable course is to move directly to an individual action." He pointed to Cavanaugh, where, he noted, "it consumed 14 years to move from the proposed class action to individual issues trials". He concluded: "The preferable procedure in the immediate case is individual trials."^[1]

The Court of Appeal deferred to that view, saying Justice Perell had concluded that certification "would actually decrease class members' meaningful access to justice."^[1]

The Quebec case

The appellants argued that a similar class action against the Society had been certified in Quebec. The court cited that case as A. c. Watch Tower Bible and Tract Society of Canada, 2019 QCCS 729, upheld on appeal in 2020 QCCA 1701. The Court of Appeal said: "A successful certification motion in Quebec does not guarantee certification in other provinces or vice versa." Quebec's test under article 575 of its Code of Civil Procedure is different: among other things, it does not require that a class action be the preferable procedure, and it has no "basis in fact" requirement at that stage.^[1]

The costs endorsement

The appellants' final argument drew on a remark Justice Perell made in his separate ruling on costs. The Court of Appeal quoted it:

The appellants argued that this amounted to an admission that the Canada Branch was not a necessary party after all, and that the dismissal had allowed the Society "to evade liability through its organizational stratagem".^[1]

The Court of Appeal disagreed. It said the remark did not contradict the finding that the Canada Branch was a necessary party. The judge had "simply observed that, from a practical and arguably ethical perspective, the Society could and should have agreed to represent the Canada Branch in the litigation." And because he had said he would have refused certification even with the Branch in the case, the same result would have followed had the Society agreed to represent it.^[1]

What was and was not decided

The decision is about the lawsuit as drafted and the procedure chosen. The court did not rule on whether any of the three appellants, or anyone else, was abused. Nor did it rule on the truth of the claim's allegations about how Jehovah's Witnesses handle abuse reports.^[1]

What it held is that this pleading, against this defendant, did not set out a legally valid claim in negligence, fiduciary duty or vicarious liability. It left undisturbed Justice Perell's finding, which the appellants did not challenge, that the missing Canada Branch was on its own enough to defeat certification. It also upheld the view, first stated by Justice Perell, that individual lawsuits rather than a class action are the preferable way for people in the proposed class to pursue their claims.^[1]

A party to a decision of the Court of Appeal for Ontario can ask the Supreme Court of Canada for permission, known as "leave," to appeal further.

The appellants were represented by Bryan C. McPhadden and John McKiggan. David Elman and Robert Stefanelli acted for the Society. The appeal was heard on 20 April 2026; the court's file number is COA-25-CV-0977.^[1]