Defending global claims at home: rebalancing transnational mining litigation in Ontario

Explore other chapters in the Mining Disputes Insights Series 2026.

Key takeaways

• Ontario courts may decline to hear transnational mining claims even where a defendant has a Canadian presence, if another forum is clearly more appropriate.
• Robust, forum-specific expert evidence — particularly on access to justice, procedural fairness, and the ability to compel witnesses — can be decisive on a forum non conveniens motion.
• Arguing that the court lacks jurisdiction simpliciter where there is any Canadian presence is an increasingly weaker line of defence in transnational claims compared to arguing forum non conveniens.

Why this matters

Multinational mining corporations with Canadian offices may face legal claims in Canada for events that occurred abroad. The Court of Appeal for Ontario’s decision in Matiko John v. Barrick Gold Corporation, 2026 ONCA 248, underscores the vital role of the forum non conveniens doctrine in resisting these claims.

Specifically, the decision highlights the need for defendants to provide robust evidence regarding:

1. The claimants’ ability to access justice in the jurisdiction where the events took place; and
2. The location of material witnesses and the ability (or inability) to compel them in Ontario.

At the same time, the decision suggests that where a defendant has a Canadian presence, forum non conveniens may be a stronger defence than jurisdiction simpliciter.

Overview

The appellants, nationals of Tanzania, commenced two related actions in Ontario seeking damages for personal injuries and deaths allegedly caused by members of the Tanzanian Police Force (“TPF”) while providing armed security at the North Mara Gold Mine in northern Tanzania.

Barrick Gold Corporation (“Barrick”), a Canadian multinational mining company, indirectly holds a majority interest in the mine. The claims arose from alleged incidents between April 2021 and July 2023 involving violence by TPF personnel at or near the mine site, resulting in seven deaths and multiple injuries.

The appellants advanced two causes of action:

• Direct parent company liability in negligence: The appellants alleged that Barrick exercised sufficient control through the establishment, oversight, and enforcement of corporate human rights and security policies at the mine.
• Aiding and abetting violations of customary international law: The appellants alleged that Barrick aided and abetted violations of prohibitions against extrajudicial killing and torture (relying on Nevsun Resources Ltd. v. Araya, 2020 SCC 5 (“Nevsun”), which held that a claimant may assert a cause of action grounded in international law against a Canadian corporation).

Barrick moved to dismiss or stay the actions on the basis that Ontario lacked jurisdiction or, alternatively, that Tanzania was the clearly more appropriate forum. The motion judge held that Ontario lacked jurisdiction simpliciter, and, alternatively, that Tanzania was clearly the more appropriate forum because alleged events, witnesses, and operative facts were centred there.

In the alternative, the motion judge held that, even if Ontario had jurisdiction, the actions should be permanently stayed on the basis of forum non conveniens as Tanzania was clearly the more appropriate forum.

The Court of Appeal’s decision

On appeal, Barrick no longer disputed that Ontario courts had jurisdiction simpliciter, narrowing the appeal to whether the motion judge erred in declining to exercise jurisdiction on forum non conveniens grounds.

The appellants argued the motion judge improperly characterized the claims as ordinary negligence actions and failed to give sufficient weight to access to justice concerns and the risk of unfairness in Tanzania.

The Court of Appeal rejected these submissions and applied a deferential standard of review. It accepted the motion judge’s conclusion that the litigation would turn largely on factual causation and eyewitness evidence relating to events in Tanzania, including testimony from police officers, security personnel, medical professionals, and other local witnesses.

The Court accepted that proceeding in Ontario would significantly prejudice Barrick because key witnesses in Tanzania could not be effectively compelled. It also upheld findings that no material witnesses were located in Ontario, that no Barrick board members or senior executives with responsibility for the mine resided there, and that the company’s sustainability and human rights policies were neither developed nor implemented by Ontario-based personnel.

The Court also accepted expert evidence that Tanzania’s judiciary was independent, competent, and capable of adjudicating complex civil disputes, including novel tort claims. There was no evidence of a real risk of unfairness. The appeal was dismissed, leaving the permanent stay of the actions intact.

Practical implications of the decision

A practical approach to forum non conveniens

The Court of Appeal’s decision affirms that courts will take a practical approach when assessing a forum non conveniens motion, focusing on witness location and access to justice in a foreign jurisdiction. The decision highlights the need to adduce evidence not only of the fairness of the foreign judicial system, but also the applicable substantive law.

Barrick led expert evidence on both of these factors. By contrast, the plaintiffs did not lead evidence that they had even attempted to retain counsel in Tanzania to assert their claims there.

The high bar still holds

The test for a defendant advancing a forum non conveniens motion is still high: the defendant must demonstrate that the other forum is “clearly more appropriate” (Club Resorts Ltd. v. Van Breda, 2012 SCC 17, at para. 108). Van Breda identifies a non-exhaustive list of relevant factors, including:

• the comparative convenience and expense for the parties and their witnesses in litigating in the court or in any alternative forum
• the law to be applied to issues in the proceeding
• the desirability of avoiding a multiplicity of legal proceedings
• the desirability of avoiding conflicting decisions in different courts
• the enforcement of an eventual judgment
• the fair and efficient working of the Canadian legal system as a whole

In this case, the dispute centred on comparative convenience and the applicable law, both of which were the subject of competing expert evidence. The outcome illustrates how decisive such evidence can be on a forum non conveniens motion.

The plaintiffs emphasized that contingency fees are not permitted in Tanzania, which would significantly increase the cost of litigation. Barrick countered with evidence of access to pro bono legal services in Tanzania. More significantly, the motion judge relied on expert evidence establishing that Tanzanian civil procedure does not permit the enforcement of letters of request to compel testimony in foreign proceedings. Given that virtually all material witnesses were located in Tanzania, this limitation weighed heavily in favour of proceeding there.

Substantive law: no barrier to the claims

Barrick also addressed another potential obstacle: whether Tanzanian law could accommodate the claims. Its expert evidence demonstrated that Tanzanian tort law is not limited to closed categories, allowing room for novel claims. That was critical given that some allegations were framed as breaches of customary international law, including aiding and abetting torture and extrajudicial killing — claims only recently recognized for the first time by the Supreme Court of Canada in Nevsun.

The contrast with Nevsun is telling. There, the defendant did not contest that British Columbia was the proper forum because the record showed a real risk of an unfair trial in Eritrea. Here, the opposite was true: the evidence supported both the fairness of Tanzania’s legal system and its capacity to recognize and adjudicate the plaintiffs’ claims.

Access to justice concerns require proof

The decision reinforces that access to justice arguments must be substantiated. General concerns about cost or unfamiliar legal systems will not suffice. Without evidence of a real risk of unfairness, courts will defer to a foreign forum that is otherwise better positioned to hear the case.

Jurisdiction simpliciter takes a back seat

Although the Court of Appeal did not directly address jurisdiction simpliciter, the decision suggests forum non conveniens may be the more effective defence in transnational litigation. Even where jurisdiction exists, a well-supported forum challenge can still end the case in Canada.

Conclusion

Ultimately, the Court of Appeal’s decision may signal a corrective shift after years of concern that Nevsun could open the floodgates to claims against multinational mining corporations for acts committed abroad. 

For more information on managing transnational litigation risk or forum non conveniens strategy, please contact a member of our Global Metals & Mining or International Arbitration teams.

Our Mining Disputes Insights Series highlights recent court decisions, legal developments and policy shifts that are influencing how capital is deployed, how transactions are structured, and how projects are advanced and defended when challenged. Each article offers focused insight on a specific pressure point or recent development, with an emphasis on practical consequences for mining companies, investors, and other market participants. Across the series, we explore questions that matter to both operational and deal teams.