Jen Winstanley

The defendant, Barrick Gold Corporation, brought a motion to dismiss or permanently stay two companion actions, arguing that the Ontario Superior Court lacked jurisdiction or, alternatively, that Tanzania was the more appropriate forum under the doctrine of forum non conveniens.

The plaintiffs alleged injuries and deaths at a Tanzanian mining site, caused by the Tanzanian Police Force, for which they claimed Barrick was responsible due to negligent oversight.

The court found that Ontario lacked jurisdiction simpliciter, as the real and substantial connection to the litigation was in Tanzania, not Ontario, thereby rebutting the presumption of presence-based jurisdiction.

The court also determined that even if jurisdiction existed, Tanzania would be the clearly more appropriate forum due to the location of key witnesses and evidence, the inability to compel Tanzanian police witnesses in Ontario, and the adequacy of the Tanzanian common law legal system.

The actions were dismissed.

Three Eritrean workers alleged they were conscripted into forced labour at a mine in Eritrea owned by Canadian corporation Nevsun Resources Ltd. and subjected to violent, cruel, inhuman and degrading treatment.

The workers commenced proceedings in British Columbia seeking damages for breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity, as well as domestic torts.

Nevsun brought a motion to strike the pleadings on the basis of the act of state doctrine and on the basis that the customary international law claims had no reasonable prospect of success.

The majority (Abella J., Wagner C.J., Karakatsanis, Gascon and Martin JJ.) dismissed the appeal, holding that the act of state doctrine does not form part of Canadian common law and that it was not plain and obvious that the customary international law claims were bound to fail.

Brown and Rowe JJ. dissented in part, agreeing on the act of state doctrine but concluding the customary international law claims were bound to fail.

Côté J. (Moldaver J. concurring) dissented in full, holding the claims were not justiciable because they required a determination that Eritrea had violated international law.

Following a prior decision approving class counsel fees in a class proceeding settlement, class counsel sought clarification regarding the calculation of the fee award, treatment of consulting law firm fees, application of taxes, and comments regarding disclosure of a fee sharing agreement.

The court acknowledged that an arithmetic error had occurred in the original calculation and corrected the award by applying a 10% reduction to the claimed counsel fee before adding disbursements.

The court clarified that consulting law firms were to be paid from the approved counsel fee rather than treated as additional disbursements and confirmed that applicable taxes were payable in addition to the approved amount.

The court also addressed concerns about disclosure of the fee sharing agreement, reiterating that failure to fully disclose the agreement’s substance was a mistake despite counsel’s intentions.

Representative plaintiffs in a proposed national competition law class action sought court approval of partial settlement agreements with three defendants, approval of contingency fee agreements with class counsel, and approval of counsel fees and disbursements.

The court approved settlements totaling $13.63 million with Bank of America, Capital One, and Citigroup and found the agreements fair, reasonable, and in the best interests of the class under the Class Proceedings Act, 1992.

The court also approved the contingency fee agreements but scrutinized a separate fee‑sharing agreement between class counsel and a rival law firm that had commenced competing class actions.

The judge held that the fee‑sharing agreement required court approval, was not fair or reasonable to class members, and may constitute champerty or maintenance.

Class counsel’s requested fee was reduced by 10%, and the court ordered that no payment be made to the rival firm under the unauthorized agreement.