Another ruling in favor of the Christian Congregation of Jehovah's Witnesses, this time by the Superior Court of Justice of Ontario, Canada, which refutes the thesis dear to the anti-cultists that in the Jehovah's Witnesses – as in other religious minorities – the commission of crimes is implicit, to the point of making them 'systemic'. The Canadian court rightly pointed out that, in the case at hand, the responsibility for the alleged crimes is personal.
CANADA: Ontario Superior Court of Justice states Jehovah's Witnesses have no "systemic" problem of child sexual abuse
A certification motion for a class actions lawsuit making the Jehovah’s Witnesses organization liable for individual members’ abuses was rejected.
By Massimo Introvigne, Bitter Winter (08.02.2024) — On July 4, the Ontario Superior Court of Justice rendered a major decision in favor of the Jehovah’s Witnesses (“Gutierrez v. The Watchtower Bible and Tract Society of Canada,” 2024 ONSC 3837), which will probably become a significant precedent in cases outside of Canada too.
The main Toronto Branch of the Ontario Superior Court of Justice (credits)
Three individuals filed a class action lawsuit against the Watch Tower (misnamed in the style of cause as “Watchtower”) Bible and Tract Society of Canada (“the Society”) on behalf of a class consisting of adults who claimed that when they were children they had been abused by either Elders or non-Elders of the Jehovah’s Witnesses. They alleged that the Society was either directly or vicariously liable for these alleged abuses.
Part of the decision concerns a procedural question, i.e., whether the Society was the proper defendant. The judge concluded that the Society was a “proper party” but the plaintiffs should have sued as a “necessary party” the Canadian Branch of the Jehovah’s Witnesses too, which is different from the Society and, unlike the latter, is an unincorporated association. “The Society is a proper party to this lawsuit; however, the necessary party is the Canada Branch, which is an unincorporated Jehovah’s Witness association that has no legal status apart from its individual members” (par. 5). Consequently, the individual persons responsible for the Canada Branch should have been sued.
The judge is critical of the Jehovah’s Witnesses for not having brought this pleading mistake to the attention of the plaintiffs (which may reflect on the future decision on costs). The Jehovah’s Witnesses objected and explained that the senior and experienced lawyers for the plaintiffs should have been able to do their homework. The judge went on to examine the substance of the matter as if the action had been brought against both the Society and the Canada Branch.
In deciding whether to certify a class action in the province of Ontario and let it go on as such, the judge must proceed based on the assumption that the factual allegations and the expert opinions submitted by the plaintiffs are true. However, the judge should still examine the arguments of law. He did and concluded that “it is plain and obvious that all of the causes of action cannot succeed” (par. 105).
For the purposes of the class action, the plaintiffs advanced three causes of action: (a) negligence, including systemic negligence; (b) breach of fiduciary duty; and (c) vicarious liability. The judge concluded that none of the three causes of action would succeed.
Three important preliminary findings of the judgment govern the conclusions on the three causes of action. First, the Jehovah’s Witnesses “do not operate religious day-schools, Sunday schools, orphanages, home care, or any other activity where the congregation or its leaders might assume responsibility for the care of children. Congregations do not separate children from their parents. The congregations do not provide or sponsor any extra-curricular activity, such as choirs, clubs, camps, outings, sports, outdoor walks, parties, and similar activities for children, youths or adolescents. It is Jehovah’s Witness dogma that parents have the sole scriptural responsibility to provide age-specific religious education and training to their children and that other Jehovah’s Witnesses should not usurp or assume the parental role” (par. 56–57).
Second, “As an ecclesiastic matter, beginning in September 1950, and more particularly since the early 1980s when mandatory reporting laws for child sexual abuse came into effect in Canada, the Governing Body provided congregants worldwide, and the public at large, with scripturally based guidance and education on practical steps to prevent child sexual abuse and to assist victims” (par. 67), and in 2018 published a worldwide children protection policy (par. 75).
Third, “starting in 1988, the Canada Branch issued letters to the Elders in all congregations regarding an Elder’s obligation to report allegations of child abuse to secular authorities, irrespective of any consideration of spiritual status that may arise from the same allegations” (par. 69). “The Elders were directed, among other things, that: (a) Canadian law requires the reporting of child abuse to secular authorities without exception; (b) Elders are to contact the Legal Department of the Canada Branch immediately to obtain situation-specific legal advice to assist in compliance with reporting requirements; and (c) if the victim wishes to make a report to the authorities, it is his or her absolute right to do so” (par. 70).
When confronted with these policies, none of the causes of action can stand, the judge said. As for negligence, “the Canada Branch, the Society, and the various congregations of Jehovah’s Witnesses do not provide any religious, educational, or secular services to the children of the congregants. There is no direct relationship between the Canada Branch and the Society with the children of the congregants” (par. 129). “It is not reasonably foreseeable that a religious institution that does not assume any care giving responsibility for children should be liable for failing to safeguard Jehovah’s Witnesses children from sexual assaults perpetrated outside of Kingdom Halls by minor and adult Jehovah’s Witnesses in private residences, camp grounds, and automobiles” (par. 128). The sexual abuse allegedly suffered by children of Jehovah’s Witnesses in the cases presented by the plaintiffs was private and familial rather than an institutional matter, the judge said. The abuses “were not caused by the Canada Branch’s alleged breaches of the duty of care” (par. 124).
Concerning the second charge, breach of fiduciary duty, the judge concluded that “it is plain and obvious that the Plaintiffs and the putative Class Members do not satisfy the cause of action criterion for a claim of breach of fiduciary duty. The Canada Branch and the Society do not have a relationship with the children of the Jehovah’s Witnesses congregants that is categorically a fiduciary relationship nor are there indicia of an ad hoc fiduciary relationship. There are no pleaded facts that the Society or the Canada Branch breached any duty of a fiduciary nature” (par. 144).
Finally, on vicarious liability, the decision notes that obviously the position of Elders and non-Elders is different. However, in both cases the alleged abuses occurred in a private-familial rather than in an institutional context. The judge noted that “the Plaintiffs and the other putative Class Members cannot demonstrate that the relationship between the Canada Branch and the tortfeasors is connected to functions or enterprise of the Canada Branch so that what the tortfeasors did can be regarded as a materialization of risks created by the Canada Branch. The Canada Branch did not create opportunities for the Elders and non-Elders to perpetrate sexual assaults” (par. 154). The alleged abusers “were not engaged in any tasks or roles assigned to them by the Canada Branch. The Canada Branch assigned no tasks or roles to the tortfeasors that involved the children of the congregants, and the tortfeasors were not engaged in any purpose of the Canada Branch or the Society. There is no connection, much less the required strong connection between the risks inherent in the Canada Branch’s enterprise and the wrongdoing of sexually abusing children” (par. 155).
Although with a somewhat stricter approach, the Canadian decision confirms a 2023 verdict of the Supreme Court of the United Kingdom, which excluded vicarious liability for a crime of rape perpetrated by an Elder in a non-institutional context in a private home. It also confirm decisions that in Belgium and in France have considered inaccurate claims by governmental agencies that Jehovah’s Witnesses have a systemic problem of child abuse.
Among the Jehovah’s Witnesses there are, as it unfortunately happens in all human groups, cases of child sexual abuse, mostly in the family. These should not be confused with institutional abuse, which is a well-known problem in other religious organizations. The Jehovah’s Witnesses do not run child-care institutions, there is, therefore, no problem of institutional child sexual abuse, much less a systemic one. As the Canadian judge concluded, “there is more than a little traction to the Society’s argument that the alleged negligence and alleged breaches of fiduciary duty in the immediate case are not examples of systemic failures but rather individual failures that are not suitable for certification as common issues” (par. 174).
Source: HRWF
