DATE: 20030407

DOCKET: C39231

COURT OF APPEAL FOR ONTARIO

RE: DARLENE NOBLE Applicant (Respondent in Appeal) – and – EDWARD NOBLE, YVONNE SIN, WELLNESS INNOVATIONS CORP., VIBROTONE LTD. ADAM INC., WELLNESS AMERICA INC., WELLNESS AMERICA LP and RAMEDES INC. Respondents (Appellants in Appeal)

BEFORE: MCMURTRY C.J.O., DOHERTY and GILLESE JJ.A.

COUNSEL: Robert J. Morris and Kenneth MacDonald for the appellant Edward Babin and Kristine Di Bacco for the respondents

HEARD: April 2, 2003

RELEASED ORALLY: April 2,2003

On appeal from the order of Justice Susan G. Himel of the Superior Court of Justice dated November 13, 2002.

E N D O R S E M E N T

[1] We are not persuaded that Himel J. erred in the exercise of her discretion, which was based upon her evaluation of the factors to be considered when determining whether to grant a stay in these proceedings. It was clearly open to the motions judge to find, as she did, that the oppression remedy was legitimately sought and, as a consequence of that finding, that it could not be said that the California courts have exclusive jurisdiction in the matter.

[1] Even if it could be said that the motions judge’s statements about the burden of proof are somewhat confusing, we see no basis to interfere. As this court said in Frymer v. Brettscheinerder et al. (1994), 115 D.L.R. (4th) 744 (Ont. C.A.), the burden will rarely matter since the issue is normally resolved on the basis of the evidence and that is precisely how the motions judge resolved the matter.

[2] For these reasons, the appeal is dismissed. Costs to the respondent are fixed in the amount of $12,000.

“R.R. McMurtry C.J.O.”

“D.H. Doherty J.A.”

“E.E. Gillese J.A.”```