In Matiko John v. Barrick Gold Corporation, 2026 ONCA 248, the Court of Appeal for Ontario addresses whether Ontario courts should retain jurisdiction over transnational claims alleging overseas human rights violations by a Canadian multinational corporation, or whether the proceedings should be stayed on the basis of forum non conveniens.
Tanzanian plaintiffs alleged that members of the Tanzanian Police Force (TPF), providing security at a gold mine indirectly owned by Barrick Gold Corporation (Barrick), committed acts of excessive violence resulting in injury and death. The plaintiffs sued Barrick in Ontario, advancing both negligence-based liability claims against the parent company and claims grounded in customary international law following Nevsun Resources Ltd. v. Araya.
Although Barrick maintained a business presence in Ontario, the motion judge concluded that Ontario courts lacked jurisdiction simpliciter and, in the alternative, that Tanzania was the clearly more appropriate forum. On appeal, the Court of Appeal accepted that Ontario may have had presence-based jurisdiction but upheld the permanent stay based on forum non conveniens. The Court emphasized fairness, efficiency, evidentiary practicality and the availability of justice in Tanzania.
The decision clarifies how Canadian courts approach transnational corporate accountability cases and underscores limits on forum selection where factual evidence, witnesses and enforcement realities overwhelmingly point to a foreign jurisdiction.
Facts
The appellants were Tanzanian residents who brought two related actions in Ontario alleging personal injuries and wrongful death arising from 20 separate incidents occurring between April 2021 and July 2023 near the North Mara Gold Mine in Tanzania. The mine is owned by North Mara Gold Mine Limited, a Tanzanian company, of which Barrick is the indirect majority shareholder (84%), with the remaining interest held by the Tanzanian government.
The plaintiffs alleged that members of the TPF engaged under Memoranda of Understanding with the mine operator to provide armed security, used unnecessary and lethal force against local residents. The claims were advanced against Barrick on two bases: first, direct negligence and parent company liability arising from Barrick’s alleged control over security and human rights policies; and second, aiding and abetting violations of customary international law prohibiting torture and extrajudicial killings, relying on the Supreme Court of Canada’s decision in Nevsun Resources Ltd. v. Araya, 2020 SCC 5.
Barrick moved to dismiss or stay the actions on the grounds that Ontario lacked jurisdiction and that, in any event, Tanzania was the clearly more appropriate forum.
Motion judge’s analysis
The motion judge applied the real and substantial connection framework from Club Resorts Ltd. v. Van Breda, 2012 SCC 17. Although Barrick carried on business in Ontario through a Toronto office, the judge found the subject matter of the dispute disconnected from Ontario. The alleged wrongdoing occurred entirely in Tanzania; the mine was operated locally; the Tanzanian Police Force was independent; and no relevant witnesses or decision-makers were located in Ontario.
The motion judge made extensive factual findings, including that Barrick’s senior executives, sustainability personnel and board members were not based in Ontario; that the Memoranda of Understanding governing the TPF were Tanzanian agreements; and that the evidence necessary to resolve issues of factual causation would come from Tanzanian eyewitnesses, police officers, medical professionals and mine personnel. The judge accepted expert evidence that Tanzania’s courts are independent, competent and grounded in common law traditions, and that Tanzania does not enforce letters of request from foreign civil courts.
On that basis, the judge concluded that Ontario lacked jurisdiction simpliciter. In the alternative, the judge held that even if jurisdiction existed, the actions should be permanently stayed because Tanzania was the clearly more appropriate forum. The judge also emphasized cost, efficiency, fairness and the inability of Barrick to compel critical witnesses in an Ontario proceeding.
Issues on appeal
The appellants argued that the motion judge committed reversible errors by:
- Mischaracterizing Barrick’s corporate head office and the significance of its global human rights policies.
- Applying an incorrect evidentiary standard akin to summary judgment.
- Minimizing the human rights and customary international law dimensions of the claims.
- Improperly assessing access to justice and the risk of unfairness if the claims proceeded in Tanzania.
- Failing to account properly for the appellants’ inability to compel Barrick witnesses or obtain extensive discovery in Tanzania.
Barrick conceded that Ontario courts had presence-based jurisdiction due to its Ontario office, narrowing the appeal to whether the forum non conveniens analysis disclosed reversible error.
Court of Appeal’s analysis
Standard of review
The Court reiterated that determinations of forum non conveniens are discretionary and entitled to deference absent an error of law or a clear and serious error of fact, citing Van Breda. No such error was identified.
Head office and corporate policy arguments
Assuming without deciding that Barrick’s corporate head office might be in Toronto, the Court held that this point was not dispositive. The motion judge was entitled to find that regulatory filings and global policy documents did not locate the operative management, supervision, or security decisions in Ontario. The Court emphasized that no relevant witnesses were identified from Ontario and that the pleaded corporate governance theory did not overcome the practical realities surrounding evidence and trial fairness.
Evidentiary standard
The appellants argued that the motion judge improperly required “best evidence.” The Court rejected this argument, holding that the judge merely made a common-sense observation that parties would adduce the most cogent evidence available when addressing forum suitability. The judge did not apply a summary judgment standard nor impose an unfair evidentiary burden.
Characterization of the claims
The Court rejected the argument that the motion judge improperly minimized the human rights nature of the claims. While the motion judge described the claims as “essentially negligence” claims, this was done to highlight that factual causation would be central regardless of legal framing. The Court confirmed that causation is equally critical in customary international law claims based on aiding and abetting.
The Court distinguished Garcia v. Tahoe Resources Inc., 2017 BCCA 39, noting that unlike in Garcia, there was no cogent evidence of systemic judicial corruption or political interference undermining the fairness of proceedings in Tanzania.
Access to justice and fairness
The Court upheld the motion judge’s findings that Tanzania provided an adequate forum. The absence of contingency fees and more limited discovery did not establish a real risk of injustice. The judge was entitled to rely on expert evidence from a former Chief Justice of Tanzania and a senior law professor attesting to the independence and competence of the Tanzanian judiciary and legal profession.
The Court placed particular weight on the inability to compel Tanzanian witnesses to testify in Ontario. It confirmed that Tanzania lacks an enabling framework for enforcing foreign letters of request in civil matters, which would severely prejudice Barrick’s ability to defend itself.
Fresh evidence
The appellants sought to introduce new evidence concerning political developments, human rights reports and corporate leadership changes. Applying R. v. Palmer, [1980] 1 SCR 759, the Court refused admission, finding the evidence largely hearsay and incapable of affecting the outcome.
Disposition and key takeaways
The Court of Appeal for Ontario dismissed the appeal and upheld the permanent stay of proceedings based on lack of jurisdiction simpliciter and, in the alternative, forum non conveniens.
The decision signals judicial restraint in using Canadian courts as a default venue for global human rights claims against multinational corporations. The Court reaffirmed that corporate presence in Ontario, without more, does not override the gravitational pull of the place where the dispute is factually anchored.
Finally, the Court’s treatment of access to justice arguments reflects a disciplined application of the “real risk” standard. It demonstrates that comparative procedural disadvantages do not automatically render a forum inappropriate.
For more information on this topic, please contact the authors, Ekin Cinar and Tom Nichini.
