By Dimitris Logothetis
Reviewed by Rovena Hajdëri
INTRODUCTION
In Matiko John v. Barrick Gold Corporation,[1] the Ontario Court of Appeal considered whether actions brought by Tanzanian individuals arising from alleged human rights abuses at a gold mine in Tanzania should proceed in Ontario or be stayed and heard in Tanzania. The Court dismissed the appeal and upheld the motion judge’s permeant stay of the two actions on the basis of forum non conveniens. The appeal and motion for fresh evidence were dismissed.
THE FACTS
The Defendant-Respondent, Barrick Gold Corporation (“Barrick”) is a Canadian multinational mining company and the indirect majority shareholder of a Tanzanian company, North Mara Gold Mine Limited (“NMG”). Barrick owns 84% of NMG shares, and the Tanzanian government owns the remaining shares.
NMG owns the gold mine where the events at issue took place (the “Mine”), and where the Tanzania Police Force provided security services. The security personnel were armed and had a longstanding practice to respond with unnecessary violence to locals attempting to make a living collecting waste rock that may contain trace amounts of gold.
PROCEDURAL HISTORY
Two actions were advanced against Barrick by the villagers and family members of individuals who were killed or injured by the Mine’s security. The Appellants brought their claims in Ontario and nowhere in Tanzania, believing that the foreign court is inadequate for hearing these claims.
Barrick brought a motion to dismiss or permanently stay the actions for want of jurisdiction or, alternatively, on the basis of forum non conveniens.
The motion judge dismissed the actions for lack of jurisdiction. For jurisdiction simpliciter, the judge applied the “real and substantial connection” test. He found that although Barrick has a Toronto office that carries on business in Ontario, the presumption of jurisdiction is rebutted because the subject matter of the claim was disconnected from Ontario.
Out of an abundance of caution, the motion judge conducted a forum non conveniens analysis if, by chance, he was incorrect about jurisdiction. Considering many factors and focusing on “convenience and expense on one hand, and fairness and efficiency on the other,” the motion judge found Tanzania was a clearly more convenient forum compared to Ontario.[2]
ISSUES ON APPEAL
The Appellants asserted that the motion judge erred in his jurisdiction simpliciter and forum non conveniens analyses. Barrick, however, did not contest the presence-based jurisdiction of the Ontario court, which implicitly conceded that the actions should not have been dismissed for lack of jurisdiction.[3] Accordingly, the issues under appeal were narrowed and the Court only discussed whether the motion judge erred in finding Tanzania was the more appropriate forum on the grounds of forum non conveniens.
Summarized, the Appellants alleged the motion judge erred by:
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1. finding that Barrick’s corporate head office is in Vancouver, rather than Toronto, and misapprehending the legal and factual significance of Barrick’s global human rights and security policies, which the Appellants say emanated from Barrick’s Toronto head office;
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2. applying a summary judgment, “best evidence” standard to a forum non conveniens motion;
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3. recharacterizing the actions as essentially negligence claims and minimizing or failing to take account of the human rights context and customary international law claim for aiding and abetting torture and extra-judicial killing; and
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4. improperly assessing the real risk of unfairness to the Appellants of proceeding in Tanzania and disregarding their evidence about limited access to legal resources and sources of proof.
ANALYSIS
Standard of Review
As articulated in Club Resorts Ltd. v. Van Breda, forum non conveniens determinations involve an exercise of discretion and, therefore, are entitled to deference, “absent an error of law or a clear and serious error in the determination of relevant facts.”[4]
Issue 1: The Head Office Location and Global Human Rights and Security Policies
The Appellants argued that the pleadings frame the action for the purpose of forum non conveniens analysis. Their pleadings claimed, including but not limited to, that Barrick’s global headquarters is in Toronto and its global sustainability policies emanated from this office. Hence, these actions are properly rooted in Ontario.
The Court rejected these arguments. Even assuming that the motion judge erred on these fronts, the motion judge correctly made other findings that favoured Tanzania as the more convenient forum. Specific findings included:
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-that the Respondent’s regulatory filings and communications regarding global corporate did not bring the actual management, supervision, and security measures into Ontario;
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-sustainability-related policies were not prepared by employees in Canada;
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-none of the members of the Respondent’s Board of Directors resides in Ontario, and;
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-not a single relevant witness was identified that was from Ontario.
The Court acknowledged that pleadings frame a forum non conveniens analysis. However, it noted the importance of consideration of other factual issues in dispute as part of this analysis.
Issue 2: The “Best Evidence” Standard
The Appellants argued that the motion judge applied a summary judgment-like standard, contrary to the pleadings-based approach for determining jurisdiction, citing the following paragraph from the motion judge’s decision as support:
“As in a summary judgment proceeding, the Court is “entitled to proceed on the basis that the parties have put into the record all [or at least some] of the evidence that would be forthcoming at trial”.[5]
The Court rejected this argument. One of the key reasons was placed on referencing the motion judge’s quote as to “[at least some] of the evidence that would be forthcoming at trial.”[6] The Court rejected that this supports the Appellants’ argument as to the summary judgement evidentiary standard. These comments were made during the judge’s discussion on a fundamental issue: the Appellants did not adduce any eyewitness testimony, yet Barrick would have to call multiple witnesses to defend itself which could not occur if the trial proceeded in Ontario because Tanazia would not enforce letters of request.[7] That in the Court’s view supports the motion judge’s analysis of other issues central to his forum non conveniens analysis, and did not unfairly impact any conclusions.
Issue 3: Recharacterizing the Actions
The Appellants argued that the motion judge recharacterized the actions as negligence claims, resultingly ignoring the human rights context of the claims.
The Court rejected these submissions because the motion judge’s statements were taken out of context.[8] The motion judge did not understate the importance of human rights law but described the Appellants’ actions as negligence claims to emphasize causation would be an important issue at trial. Such an issue would require multiple witnesses, which would likely be missing if trial proceeded in Ontario.
The Court of Appeal also showed deference to the motion judge’s findings based on expert evidence. Expert evidence demonstrated that the Tanzanian judiciary is open to “new and innovative causes of action,” and the motion judge was entitled to accept this evidence bearing in mind the record before him.[9]
Issue 4: The Risk of Proceeding in Tanzania
The Court rejected the Appellants’ submissions that the motion judge erred in not finding there was a “real risk” of unfairness if their actions proceeded in Tanzania. The Court emphasized that cogent evidence must be adduced to demonstrate a “real risk” of unfairness.
The Court found that the Appellants’ allegations of prejudice, political intimidation, and a lack of independence” on the part of the Tanzanian judiciary were not based on cogent evidence. Rather cogent evidence in support of the proper functioning of the courts and judicial system in Tanzania was provided by the country’s Chief Justice and one of the most prominent law professors.[10]
The Court rejected the Appellants’ submissions based on other cases, including UK case law. The Court clarified that the law is articulated in Van Breda and showed deference to the motion judge’s findings of fact that addressed various concerns put forward by the Appellants.
The Appellants also submitted that the motion judge did not consider their expert evidence as to the “unlikelihood of the appellants’ obtaining adequate legal representation to prosecute their actions” in Tanzania.[11] The Appellants did not adduce evidence that they approached any Tanzanian lawyers or legal aid clinics to see what legal services might be available. The Court stated that the motion judge was entitled to prefer the evidence of Barrik’s experts on the issue to that of the Appellants.
Ultimately, the Court was not satisfied that the Appellants demonstrated “an error in law or reversible error in fact in the motion judge’s discretionary forum non conveniens decision.”[12] The motion judge was entitled to rely on the evidence in front of him to find that proceeding in Tanzania did not present an “insurmountable hurdle to a fair trial.”[13]
Issue 5: Fresh Evidence
The Appellants sought to file an affidavit appending various exhibits, including a report by Amnesty International concerning recent events and situation in Tanzania as well as other sources. In response, Barrick filed an affidavit from the country’s former Chief Justice opinion that “recent events in Tanzania have not comprised the proper administration of justice in that country.”[14]
The Court denied admitting fresh evidence. It found, at best, the new evidence was hearsay. Assuming it was not hearsay, the evidence lacked relevance, credibility, and cogency. Accordingly, it could not reach the required threshold for fresh evidence of being capable of affecting the outcome of the proceeding.
TAKEAWAYS
Matiko John provides a good example of rebutting the presumption of jurisdiction at the forum non conveniens stage.
As a result of the Appellants advancing various and creative arguments, the Court also provides ample examples of how courts may holistically interpret, treat, and apply evidence in the context of a forum non conveniens analysis, such as:
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-Whether letters of request could be enforced in a particular country.
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-Location of witnesses and the language they speak.
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-Evidence by former chief justices could be given weight as to opinion evidence on the administration of justice and legal system of that country.
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-Reliance upon extra-jurisdictional case law could be given no/minimal consideration.
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-To even attempt admitting fresh evidence at the appeal level, sworn evidence should be pursued.
[1] Matiko John v. Barrick Gold Corporation, 2026 ONCA 248 [Matiko John].
[2] Ibid at paras 14–15.
[3] Ibid at para 20.
[4] Ibid at para 22, citing Club Resorts Ltd. v. Van Breda, 2012 SCC 17 at para 112 [Van Breda].
[5] Ibid at para 33, citing Matiko John v. Barrick Gold Corporation, 2024 ONSC 6240 at para 35.
[6] Ibid.
[7] Ibid at para 38.
[8] Ibid at paras 45–48.
[9] Ibid at para 49.
[10] Ibid at paras 58–59.
[11] Ibid at para 61.
[12] Ibid at para 68.
[13] Ibid at para 57.
[14] Ibid at para 71.
