DATE: 20051115

DOCKET: C43150

COURT OF APPEAL FOR ONTARIO

RE:

MAPLE LEAF FOODS INC. (Plaintiff (Respondent)) – and – DNP INTERNATIONAL CO., INC. (Defendant (Appellant))

BEFORE:

LABROSSE, ROSENBERG and GILLESE JJ.A.

COUNSEL:

Brian D. Belmont

for the appellant

Lynn Mitchell

for the respondent

HEARD & ENDORSED:

November 15, 2005

On appeal from the Order of Justice Bonnie L. Croll of the Superior Court of Justice dated November 22, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] DNP appeals the dismissal of its motion for a stay of this action on the basis that California had exclusive jurisdiction and that Ontario was not the appropriate forum.

[2] First, the motions judge’s conclusion that DNP failed to establish exclusive jurisdiction to California is supported by the evidence.

[3] Second, after consideration of all the relevant factors, the motions judge concluded that Ontario was the more appropriate forum for this action.

[4] The motions judge’s decision involved an exercise of discretion that required a process of fact finding and weighing of the facts. The decision is entitled to deference.

[5] We see no basis to interfere.

[6] The appeal is dismissed with costs fixed at $5,000.00 inclusive of disbursements and Goods and Services Tax.