A. Introduction

[1] In this proposed class action under the Class Proceedings Act, 1992,[^1] the Plaintiffs, Christian Gutierrez, Sandra Hall, and Melissa White delivered a certification motion. The Defendant, the Watchtower Bible and Tract Society of Canada, brought a motion to strike vast portions of the evidence proffered for the certification motion. The parties settled most issues, and now the Defendant’s motion is for an Order:

a. striking paragraph 43 of the affidavit of Peter Tuovi and Exhibit K, which refers to the “Report of the Australian Royal Commission into Institutional Responses to Child Sexual Abuse”;

b. striking part of paragraph 44 of the affidavit of Mr. Tuovi;

c. striking paragraph 58 of the affidavit of Mr. Tuovi;

d. striking paragraph 62 of the affidavit of Mr. Tuovi, which refers to the Report of the United Kingdom’s Independent Inquiry into Child Sexual Abuse, Child Protection in Religious Organizations and Settings Investigation; and

e. striking paragraph 204 of the affidavit of Eric Wilson.

B. Factual Background

[2] The Plaintiffs are Jehovah’s Witnesses. The Defendant is alleged to be the Christian religious organization that constitutes the Jehovah’s Witnesses in Canada.

[3] The Plaintiffs’ Statement of Claim was issued on September 26, 2017, and it was amended on June 21, 2021. The Plaintiffs claim damages for the infliction of mental distress as a result of alleged sexual and mental abuse by fellow Jehovah’s Witness adherents, including Elders, and an alleged failure to assist and protect minors who allege they were sexually abused. The Plaintiffs allege that the Defendant was negligent, in breach of fiduciary duties, committed trespass, and committed assault.

[4] The Defendant’s Statement of Defence to the Amended Statement of Claim was served on September 28, 2021. The Defendant denies any liability and resists certification of the action as a class proceeding. The Defendant denies that “Jehovah’s Witnesses” exists as an “Organization” in the manner described in the Statement of Claim. The Defendant pleads that “Jehovah’s Witnesses” is a religious faith, not a legal entity capable of being sued. The Defendant acknowledges that it is an incorporated entity but denies that it is a secular arm for any “Organization” in Canada. The Defendant denies it is synonymous with, equivalent to, or the legal alter ego of the “Organization” as alleged in the Statement of Claim. The Defendant pleads that it does not provide any religious service and is not a spiritual representative of any “Organization” in Canada as that term has been used in the Claim. The Defendant pleads that it does not operate the “Organization” in Canada as such term is used in the Claim, does not control Jehovah’s Witnesses as a religious faith in Canada, nor are Elders appointed by or employees or agents of the Defendant.

[5] The Plaintiffs seek to certify the Action as a class proceeding on behalf of three “subgroups”:

a. All persons who are or have been Jehovah’s Witnesses and who allege that they were sexually assaulted in Canada, when they were minors, by a person occupying the role of Elder;

b. All persons who are or have been Jehovah’s Witnesses and who allege that they were sexually assaulted in Canada, when they were minors, by a Jehovah’s Witness; and

c. All persons who are a spouse, same sex partner, child, grandchild, parents, grand parent, brother or sister of a person in Subgroup (a) or (b).

[6] The Plaintiffs’ motion for certification is on the basis of the following proposed common issues:

a. Did the defendant owe a duty or duties of care to the plaintiff class?

b. Did the defendant breach the duty or duties of care owed to the plaintiff class?

c. Did the defendant owe a fiduciary duty or duties to the plaintiff class?

d. Did the defendant breach its fiduciary obligations to the plaintiff class?

e. Does the conduct of the defendant merit an award of punitive damages?[^2]

[7] In a revised Certification Record, the Plaintiffs included affidavits from Peter Tuovi and Eric Wilson.

[8] Mr. Tuovi and Bryan McPhadden are partners of the law firm McPhadden Samac Tuovi LLP, which are the lawyers of record for the Plaintiffs and the proposed Class Counsel. Mr. McPhadden is lead counsel. The content of Mr. Tuovi’s affidavit is information that he received from Mr. McPhadden.

[9] Mr. Wilson was an active Elder with the Organization of Jehovah’s Witnesses for approximately forty years until 2013. He first became an Elder in 1971. Mr. Wilson began to withdraw from the faith in 2013, and he was disfellowshipped in 2018.

1. Peter Tuovi’s Affidavit

[10] Adding paragraph 42 for context, the impugned paragraphs of Mr. Tuovi’s affidavit are paragraphs 43, the underlined portion of 44, 58, and 62 which state:

The Australian Royal Commission also found that the sexual abuse policies of the Australian Branch of Jehovah’s Witnesses are, based primarily on the policies issued by the Governing Body with some local adjustment permitted. This is the same as in England and Canada. The Royal Commission also found contrary to the Governing Bodies regarding the organizations policies and procedures on responding to allegations of child sexual abuse are not tolerated.
In that study, the Commission made a number of findings. A copy of the Report of Case Study No. 29 by the Australian Royal Commission is attached as Exhibit “K”.
Based on our experience and based on advice received from putative class members in this action, many sexual abuse victims will not come forward if they are able to pursue their remedies only by way of an individual action. They are more inclined to come forward if there is a class action, as reflected in the number of putative class members that have identified themselves to us relative to the small number of individual sexual abuse actions that have been commenced against the defendant.
From the putative class members who have contacted us, we are not aware of a situation in which an Elder has made a report of child sexual abuse to secular authorities. We have been informed of many child sexual abuse situations where Elders instructed the parents of victims and victims not to report to secular authorities.

UK Independent Inquiry into Child Sex Abuse

As noted, the Jehovah’s Witnesses in England have the same or very nearly the same child sexual abuse policies based on the same source documents as Jehovah’s Witnesses in Canada. This was confirmed by the U.K Independent Inquiry into Child Sex Abuse (the “UK Child Abuse Inquiry”). That Inquiry was established in 2015 and is ongoing.

[11] It should be noted that The Australian Report referred to in Mr. Tuovi’s affidavit was an inquiry into institutional responses to child sexual abuse and related matters in Australia. Some fifty or more religious groups were investigated. The report did, however, include a case study of the Jehovah’s witnesses in Australia. The scope and purpose of the public hearing of the case study was to inquire into: the experience of survivors of child sexual abuse within the church of the Jehovah’s Witnesses (the Jehovah’s Witness Church) in Australia. The Report notes that: “In some cases the relevance of the lessons to be learned will be confined to the institution the subject of the hearing. In other cases, they will have relevance to many similar institutions in different parts of Australia.”

[12] The Defendant’s Objections to the impugned paragraphs of Mr. Touvi’s affidavit and the Plaintiffs’ responses are set out below.

Impugned Paragraph

Objection

Plaintiffs’ Response

41-43

References other proceedings irrelevant to the Action or certification but intended to prejudice the defendant.

Improper opinion argument.

JW institutions elsewhere have and are subject to same sexual abuse policies and procedure as defendant herein with same results. The evidence is, therefore, relevant to this action and to certification. The evidence is relevant as it goes to common issues. The source of the information provided at paragraph 42 is found at the footnote.

44, 45

Source of information not provided. Improper opinion or argument, contentious and based in speculation.

The source of the information is, inter alia, found in Exhibits and, therefore, not speculative. In the absence of defence evidence about what is contended it is not known whether his evidence is contentious.

Source of information not provided and improper hearsay.

Improper opinion or argument, contentious and based in speculation.

The sources of information in the paragraphs are specifically identified.

Paragraph 58 is a statement about a lack of evidence regarding reports of sexual abuse being made to secular authorities. If there is evidence of such reports being made the defendant can adduce same in its responding certification material.

References other proceedings irrelevant to the Action or certification but intended to prejudice the defendant. Improper opinion or argument, contentious and based in speculation.

The evidence of other proceedings is composed of statements of facts. The evidence is relevant to common issues. The evidence is not prejudicial.

2. Eric Wilson’s Affidavit

[13] Adding paragraphs 203, 205, and 206 for context, the impugned paragraph from Mr. Wilson’s affidavit is paragraph 204 which states:

When the person is disfellowshipped, an announcement is read from the Kingdom Hall platform so that all will know to shun that person. When a person disassociates himself, the exact same announcement is read, making it impossible for the audience to know whether the person has committed a gross sin, or has simply chosen to leave willingly, In either case, the result is the same, total shunning of the individual by family and friends to the point of not even saying a polite "hello," or passing acknowledgement on the street. Being shunned by family means that family members can never talk to you again and must treat you as if you are dead. There are YouTube videos that document shunned family members who have committed suicide.
Being disfellowshipped is often temporary. Elders and members determined to have engaged in child sexual abuse are no exception to this possibility. If the disfellowshipping of a child molester is terminated by the congregation Elders, even then the membership is not advised about the conduct.
Disfellowshipping is reserved for those accused of having committed a serious sin, such as sexual abuse of a minor.
Determination of whether a serious sin has been committed is by a group of three congregation Elders forming a judicial committee. The primary purposes of judicial committees are to determine whether there has been sinful conduct and, if so, whether the sinner has repented. If the committee determines that the accused is not “scripturally repentant”, they will be disfellowshipped, (i.e. expelled).

[14] The Defendant’s Objection to the impugned paragraph of Mr. Wilson’s affidavit and the Plaintiffs response are set out below.

Impugned Paragraph

Objection

Plaintiffs’ Response

204

Irrelevant to the Action or Certification but intended to prejudice the Defendant.

Improper opinion or argument.

Keep in. At issue here are a total of ten paragraphs. A review of the paragraphs makes clear that the statements therein are not opinion or argument but simply a recitation of the affiant’s knowledge.

The identified practices of disfellowshipping and disassociation are relevant to the defendant’s sexual abuse policies and procedure, its adherence to them or lack thereof.

C. Discussion and Analysis

[15] For the reasons that follow, I strike paragraphs 43, 58, and 62 and part of paragraph 44 of Mr. Tuovi’s affidavit. I dismiss the motion to strike paragraph 204 of Mr. Wilson’s affidavit.

[16] Although a certification motion has a unique standard of proof, it remains a normal interlocutory motion with respect to the admissibility of evidence, including hearsay evidence. While the evidentiary burden on a certification motion is the low, some basis in fact test, that burden must be discharged by admissible evidence; the evidence tendered on a certification motion must meet the usual criteria for admissibility.[^3]

[17] On a certification motion, the court has an important gate-keeping role with respect to the admissibility of evidence, and it is not appropriate or fair to shirk that responsibility by saying let it in, and the objections will go to weight rather than admissibility.[^4]

[18] Evidence may be excluded if its probative value is overborne by its prejudicial effect, including the tendencies: to yield irrational conclusions; to confuse, mislead, or distract the trier of fact’s attention from the main issues; to unduly occupy the trier of fact’s time; and to surprise the opponent unfairly and to impair a fair hearing.[^5]

[19] The admissibility of paragraph 204 of Mr. Wilson’s affidavit and the inadmissibility of paragraphs 43, part of 44, 58, and 62 of Mr. Tuovi’s affidavit can be explained on the basis of relevance. Mr. Wilson’s evidence is relevant, but Mr. Tuovi’s evidence is irrelevant.

[20] In the main, Mr. Tuovi’s evidence in the impugned paragraphs is about the reports of inquiries and of commissions in foreign lands that have investigated the activities of Jehovah Witness congregations and religious organizations. That evidence is irrelevant and whatever probative value the reports of the inquiries and commissions may have, that value is much overborne by the prejudicial effect of admitting the reports.

[21] The admission of the reports would tend to confuse, mislead, or distract the Canadian court’s attention to the issues to be determined on the certification motion, which it should not be forgotten is, with the exception of the cause of action criterion, not a substantive-merits decision but a procedural one. A study of the reports from Australia and the United Kingdom will unduly occupy the court’s time and will impair a fair hearing of the certification motion.

[22] The obligations to report child abuse are different in Canada than they are in Australia and the United Kingdom. Thus, the standard of care and fiduciary duties may be different in Canada, but, in any event, the standards of care findings in foreign courts and tribunals are not binding on this court.

[23] There is evidence already on the record that the Defendant, while in some way affiliated with the Jehovah Witness organizations in other parts of the world, nevertheless, is an independent entity and has its own policies and procedures.

[24] While there is some evidence that the Jehovah Witness entities in other lands use identical written sources for their policies and procedures, it is not necessary to use the reports from the inquiries and commissions in Australia and the United Kingdom to proffer those documents to this court, and some of the source documents are already in the record for the certification motion.

[25] The opinions and findings of the commissions and inquests in other lands are not legal precedents, and the reports do not create issue estoppels binding on the Defendant in the immediate case. The Canadian Jehovah Witness entity that is a defendant in the immediate case was not a party to the hearings in Australia and the United Kingdom and, obviously, it was not the subject of any case studies.

[26] Much of the reports from Australia and the United Kingdom are inadmissible hearsay and admissions made by different Jehovah Witness entities in Australia and the United Kingdom are irrelevant to the Canadian entity. In short, for the purposes of the certification motion the reports are irrelevant and accordingly they are not admissible.

D. Conclusion

[27] Order to go in accordance with these Reasons for Decision. The Order should also include the evidentiary matters that were consensually resolved by the parties.

[28] The parties agreed that there shall be no Order as to costs.

Perell, J.

Released: January 25, 2023

COURT FILE NO.: CV-17-583406-00CP

DATE: 20230125

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTIAN EDUARDO GUTIERREZ, SANDRA HALL and MELISSA WHITE

Plaintiffs

and -

THE WATCHTOWER BIBLE AND TRACT SOCIETY OF CANADA

Defendant

REASONS FOR DECISION

PERELL J.

Released: January 25, 2023

[^1]: S.O. 1992, c. 6.

[^2]: Notice of Motion, para 3: Record, Tab 1, p 8.

[^3]: Harris v Bayerische Motoren Werke Aktiengesellschaft, 2019 ONSC 5967 at para 37.

[^4]: Harris v Bayerische Motoren Werke Aktiengesellschaft, 2019 ONSC 5967 at para 37.

[^5]: Harris v Bayerische Motoren Werke Aktiengesellschaft, 2019 ONSC 5967 at para 38 and Carter v Ford Motor Company of Canada, 2021 ONSC 4137 at para 10.

Gutierrez v. The Watchtower Bible and Tract Society of Canada, 2023 ONSC 650

Case Summary

A. Introduction

B. Factual Background

1. Peter Tuovi’s Affidavit

2. Eric Wilson’s Affidavit

C. Discussion and Analysis

D. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legislation 1