In the April 7 decision Matiko John v. Barrick Gold Corporation, 2026 ONCA 248, the plaintiffs appealed, arguing that the motion judge erred in permanently staying two related actions.
“Access to justice is not achieved by forcing these plaintiffs to seek help from an extremely underfunded legal aid system in Tanzania to litigate a complex human rights claim against a multinational corporation,” said Cory Wanless of Phillips Barristers PC, co-counsel for the plaintiffs. “The reality is, if this lawsuit is not heard in Ontario, it will not be heard at all.”
The appellants claimed damages for personal injuries or wrongful death of family members against the respondent Barrick Gold Corp., a Canadian mining company, which arose from actions of the Tanzania Police Force who provided armed security at a mine in the northern region of the country.
The allegations involved claims that seven people were shot to death by the police force and 13 were injured through shootings or beatings in separate incidents. Many plaintiffs acted as litigation guardians for their minor children.
The mine was owned by Tanzanian company North Mara Gold Mine Ltd., but Barrick was the indirect majority shareholder holding 84 per cent of shares, with the rest being owned by the Tanzanian government.
It was claimed that it was a longstanding practice of police personnel to respond with unnecessary violence against community members “attempting to eke out a subsistence living by gathering rocks containing trace amounts of gold from the Mine’s waste rock area,” according to the decision.
The claims related to 20 incidents of alleged unjustified violence that occurred between April 2021 and July 2023. The court noted that during that time, armed police personnel provided security under memorandums of understanding with North Mara in 2019 and 2022.
According to a statement by plaintiffs’ counsel, evidence showed that senior Barrick executives were responsible for and directly involved in oversight of security at the mine. They said the 2022 memorandum was reviewed and approved by Barrick executives, and the police force provided “a heavily armed security force at North Mara with 142 officers, and liaison officers working in the mine’s security office, all paid for by Barrick’s subsidiary.”
The appellants stated that Barrick’s involvement “in the establishment, monitoring, and failure to enforce, corporate human rights and security policies at the Mine site … premised on direct parent company liability and negligence,” and that it was “aiding and abetting violations of customary international law prohibitions against extrajudicial killings and torture.”
In Barrick’s motion to dismiss or stay the action based on jurisdiction simpliciter and forum non conveniens, the appellants filed expert evidence “launching a full-scale attack on the judiciary and administration of justice in Tanzania.”
They also posited that “Barrick exercises control over its global subsidiaries through policies and directives, including those related to security and human rights, which are issued, monitored and enforced by its senior management and Board of Directors.”
The motion judge found that “regulatory filings and other communications about Barrick’s global policies of sustainability do not bring the actual management, supervision, and security measures at the Mine into Ontario.” He stated that the filings and communications “do not assign a geographic location to matters at issue in the action.”
The appellate court said the findings were supported by evidence from Barrick’s Group Sustainability Executive that sustainability-related policies, procedures, codes and guidelines were not prepared by employees in Ontario or Canada and no member of that team was based here. Further, it was found that no member of Barrick’s board of directors resided in Ontario and that no one identified a single, relevant witness from Ontario.
The appellants claimed the judge improperly applied a summary judgment “best evidence” standard. However, the appellate court noted the judge’s statement that “evidence that would be forthcoming at trial” and made observations on the availability of cogent evidence to demonstrate the appropriate forum. It found no error for this nor any unfairness to the appellants.
It stated that the judge considered the issue that factual causation was central to the case, and significant eyewitness testimony would be necessary to resolve it. He concluded that the respondent would have to call multiple witnesses to defend itself and would not be able to do so in Ontario as Tanzania would not enforce letters of request.
The appellants argued that the judge mischaracterized the actions as negligence claims leading to the minimizing or ignoring of the human rights context of their claims, prejudging the merits of customary international law claims for aiding and abetting torture and extrajudicial killings.
The appellate court noted this was in the context of factual causation requiring testimony from multiple witnesses. The central point “was that important evidence would be missing if the trial were to proceed in Ontario.”
The judge accepted evidence from Tanzania’s former chief justice that “Tanzanian law accepts the common law principle that the categories of torts are not closed” and accepted that “the Tanzanian judiciary is open to new and innovative causes of action.” The appellate court said he was entitled to do so on the record before him and find that the forum did not present an “insurmountable hurdle to a fair trial.”
The judge said the allegations regarding Tanzania as a forum were not based on cogent evidence needed to establish “real risk” of unfairness. The appellate court stated that the judge “made findings of fact that addressed the appellants’ various concerns as part of his overall analysis.”
The court did not accept the argument that evidence concerning appellants’ unlikelihood of obtaining adequate legal representation to prosecute their actions was ignored. The judge considered it highly significant that no evidence was presented of appellants approaching “Tanzanian lawyers or legal aid clinics to see what legal services might be available.”
He found this was a “critical omission from the record,” making it difficult to assess the veracity of the argument. The appellate court found this conclusion was open on the record before him. The appellate court further stated that the motion judge was entitled to prefer the evidence of the respondent’s witnesses.
Plaintiffs’ counsel noted that the plaintiffs are impoverished rural farmers and small-scale miners who do not have the means to pay for counsel in Tanzania, adding that evidence was presented that showed the lack of legal aid funding and a prohibition on contingency fee agreements, which “impose insurmountable barriers to justice.”
The appellate court noted that only some of the incidents are described as having occurred inside the mine’s perimeter. Even if CCTV footage were available, the judge noted that “multiple viewpoints will have to be explored” and that “most of the relevant evidence will have to come from eyewitnesses.”
The court did not find the judge’s conclusion that Barrick “would be severely hampered in its defence if the trial were to proceed in Ontario” was unreasonable, noting the company cannot compel and will likely not persuade defence witnesses who were not employees to testify in this case. This would leave the court without crucial evidence. There was no error found in the judge’s conclusion.
Barrick also represented that it would attorn to Tanzanian courts. There was evidence that documentary discoveries and written interrogatories are available in Tanzania and oral examinations are available if a court determines that they are appropriate in the circumstances.
The appellate court noted that the appellants did not explain why testimony of Barrick executives would be necessary or how it would prejudice them when it would be Barrick’s onus to prove its defence.
The appellants sought to adduce fresh evidence of a developing human rights crisis in Tanzania regarding the national election, ongoing police violence at the mine and the appointment of a replacement CEO with deep connections to Ontario.
Plaintiffs’ counsel said the conditions “make the already tenuous possibility of legal action in the country even more unlikely and dangerous.” Barrick filed an affidavit in response from the former chief justice that recent events did not compromise the proper administration of civil justice.
The court stated that the appellants’ exhibits were hearsay and lacked the relevance and credibility needed that would allow them to be admitted as fresh evidence.
Intervener Amnesty International said it was disappointed by the decision. Its submissions asserted that in cases where human rights abuses are experienced in connection with Canadian companies’ overseas operations, the right to an effective remedy should be considered in forum issues.
“Time and again, we bear witness to the devastation caused by unjust systems that uphold impunity and privilege the profits of transnational corporations over the rights of people,” said Tara Scurr, Amnesty International Canada’s corporate accountability campaigner, in a statement.
The organization said that community members’ attempts to secure a subsistence livelihood from the mine’s waste rock was met with disproportionate violence, claiming the lives of more than 70 people over the past two decades.
In a statement, Barrick said that evidence established that the Tanzanian Police Force “acts independently of Barrick, which maintains a zero-tolerance policy for human rights violations by employees, contractors or any third parties acting on its behalf.”
The company’s CEO, Mark Hill, added that work in Tanzania is done in close partnership with all levels of government and the host communities, leading to economic development and job creation.
Plaintiffs’ counsel said they plan to seek leave to appeal the case to the Supreme Court of Canada.
The appeal was dismissed by Justices Janet Simmons with Associate Chief Justice Michal Fairburn and Justice Gary Trotter agreeing.
Counsel for the appellants were also Joe Fiorante of CFM Lawyers LLP and Ronan Mallovy of Phillips Barristers PC.
Counsel for the respondent were Steven Frankel, Kent Thomson and Anisha Visvanatha of Davies Ward Phillips & Vineberg LLP, who said they had no comment.
Counsel for Amnesty International Canada were Paul Champ of Champ & Associates and Vibhu Sharma of Astara Legal Barristers and Solicitors.
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