Even in cases of alleged systemic abuse, courts must evaluate whether the underlying facts demonstrate sufficient commonality to make a class action the preferable procedure. In Gutierrez v. Watchtower Bible and Tract Society of Canada, 2026 ONCA 665 (Gutierrez), the Ontario Court of Appeal upheld the Superior Court’s denial of certification for a proposed class action alleging childhood sexual abuse within Canadian Jehovah's Witness congregations.
The three plaintiffs in the case allege that they were sexually abused by different members of varying status at different Jehovah's Witness congregations. They allege that the defendant was liable for failing to implement, enforce and oversee adequate safeguards for minors, properly supervise and support victims, effectively investigate and respond to allegations of sexual abuse, and remove known abusers from the church.
In concluding that a class action would not be the preferable procedure, the motion judge had identified that the class members’ claims shared no common perpetrator, activity or location. The Court of Appeal upheld the motion judge's conclusion that certification would not advance access to justice for such highly individualized allegations. The Court further accepted the motion judge's conclusion that a common issues trial would instead be a "retardant to access to justice" and that individual or joinder actions would be preferable.
The Court also rejected the plaintiffs' attempt to analogize to certification motions of other institutional abuse class actions, including those involving residential schools and care facilities. Unlike those cases, the pleadings in Gutierrez did not allege that the defendant operated programs for children, assumed responsibility for their care, organized the activities during which the abuse occurred, or otherwise stood in a sufficiently proximate relationship with the proposed class members.
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- The Court of Appeal indicated that it was reluctant to interfere with the motion judge’s preferable procedure determination, partially due to the insights he had gained after the Divisional Court overturned his certification denial in Cavanaugh v. Grenville Christian College, 2014 ONSC 290. The motion judge had expressly evaluated that immediate individual or joinder actions would have been preferable to the 16-year Cavanaugh class action.
- Consistent with prior jurisprudence, the Court of Appeal observed that a motion judge's preferable procedure analysis attracts "heightened deference."
- Certification was denied even though a parallel class action against the defendant was previously certified in Quebec. The Court of Appeal identified that there is no "preferable procedure" criterion, and no "basis in fact" burden for class action authorization in Quebec.
