COURT OF APPEAL FOR ONTARIO DATE: 20240322 DOCKET: M54919 (COA-24-CV-0225)

van Rensburg J.A. (Motions Judge)

BETWEEN

Arlete Carvalho in her capacity as Estate Trustee for the Estate of Leonard Carvalho, Deceased Applicant (Respondent/Responding Party)

and

Aliesha Verma Respondent (Appellant/Moving Party)

Counsel: Miranda E. Desa and Dennis Van Sickle, for the appellant/moving party Tanya A. Pagliaroli and Veronica Tsou, for the respondent/responding party

Heard: March 14, 2024

Endorsement

Overview

[1] On March 14, 2024 I dismissed, with reasons to follow, a motion seeking to stay pending appeal to this court the order of Stewart J. dated February 26, 2024. These are my reasons.

[2] In the order under appeal the application judge declared that the dog, Rocco Jr., was owned by Leonard Carvalho at the time of his death on November 24, 2022 and formed part of his estate. She ordered Ms. Verma to return the dog to the estate trustee, Arlete Carvalho, by March 15, 2024. In making the order the application judge considered a voluminous record that included numerous affidavits, transcripts of cross-examinations and documentary evidence. She heard and addressed the oral and written submissions of counsel.

[3] Ms. Verma commenced an appeal by serving and filing a notice of appeal. The order is not automatically stayed pending appeal. The order is final and is expected to be complied with even if it is appealed, in the absence of a stay pursuant to r. 63.02(1) of the Rules of Civil Procedure.

The Test on a Motion for a Stay

[4] The overarching consideration is whether a stay is in the interests of justice: Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644, at para. 10. This is determined by a consideration of the factors in RJR-MacDonald Inc v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pp. 347-49:

(a) whether the appeal raises a serious question to be tried;

(b) whether the moving party would suffer irreparable harm if the stay were refused; and

(c) the balance of convenience, namely which of the parties would suffer greater harm from the granting or refusal of the stay.

[5] The relative strengths of these factors need not be equal. One factor may favour a stay more strongly than another: Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122, at para. 6. However, all three factors must be satisfied for a stay to be granted: R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 12.

[6] For the following reasons, Ms. Verma has not met the test for a stay.

(a) Serious Question to Be Tried

[7] This stage involves a preliminary assessment of the merits of the appeal. The moving party must satisfy the court that the appeal is neither (i) frivolous, in the sense that it is devoid of merit or has little prospect of success, nor (ii) vexatious, in the sense that it is intended to annoy or embarrass the respondent: RJR, at p. 337; UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited, 2021 ONCA 279, at para. 33; Heidari v. Naghshbandi, 2020 ONCA 757, 153 O.R. (3d) 756, at para. 10; and Lenihan v. Shankar, 2021 ONCA 142, at para. 25.

[8] The weight to be placed on the preliminary assessment of the merits is a delicate matter that varies based on the context: SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2022 ONCA 373, 162 O.R. (3d) 753, at para. 24. The standard of review on appeal must be kept in mind, as an appeal is not an opportunity for a re-hearing of the case on the merits. The application, at its core, was to determine the factual issue of ownership of the dog at the time of Mr. Carvalho’s death. Absent an error of law or a palpable and overriding error of fact, the application judge’s findings will be upheld on appeal: Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 104.

[9] In support of her stay motion Ms. Verma advanced four grounds of appeal:

1. that the application judge’s decision was inconsistent with her finding at para. 3 of her reasons that Mr. Carvalho and Ms. Verma had “acquired” the dog;
2. that the application judge erred by failing to apply a “contractual formation” analysis to the question of ownership of Rocco Jr.;
3. that the application judge erred by failing to consider whether Ms. Verma was a joint owner of the dog, despite counsel advising the application judge at the end of closing submissions that it was “open to her” to do so; and
4. that the application judge overlooked evidence when she observed, at para. 19 of her reasons, that Ms. Verma did not assert that she owned the dog or that the dog was a gift until after Mr. Carvalho’s death.

[10] Based on the record before me, I have concluded that these grounds of appeal have little, if any, prospect of success.

[11] The first and fourth grounds of appeal take isolated sentences in the application judge’s reasons out of context, rather than considering her reasons in their entirety as this court has directed: Wasylyk v. Simcoe (County), 2023 ONCA 781, at para. 15. A review of the application judge’s reasons as a whole reveals that she carefully assessed the issue before her: whether Ms. Verma owned or had received the dog as a gift. She applied the correct legal analysis that was endorsed by the parties, namely the factors in Coates v. Dickson, 2021 ONSC 992. She explained her findings under each factor in detail and with reference to the evidence.

[12] As for the second and third grounds of appeal, the responding party noted that the contractual formation and joint ownership arguments were not raised at first instance and are therefore unlikely to be entertained by this court on appeal: Ontario (Labour) v. Cobra Float Service Inc., 2020 ONCA 527, at para. 19. Even if these arguments had been expressly considered by the application judge, I agree with the responding party that it is difficult to see how they would have made any difference to the outcome.

[13] Applying a contractual formation test to the transaction with the vendor of Rocco Jr. would not have assisted the application judge. The issue before her was who, as between Mr. Carvalho and Ms. Verma, owned the dog – not what the vendor might have intended or understood. As the Coates factors direct, the application judge focused her analysis on whether there was “any express or implied agreement as to ownership” between Mr. Carvalho and Ms. Verma that was made “either at the time [Rocco Jr.] was acquired or after”. She considered not only who paid for the dog, but also other relevant factors such as Ms. Verma’s access to the dog.

[14] Similarly, there is nothing to suggest that the application judge’s decision would have been any different had she expressly referred to the question of joint ownership. The reasons explain why she concluded that Mr. Carvalho was the owner of the dog, and that even if there had been an intention to gift the dog to Ms. Verma, the gift failed because the gift was not completed through delivery. The application judge considered the electronic communications between the parties and found that Ms. Verma’s access to the dog was entirely dependent on Mr. Carvalho’s agreement and permission. This is inconsistent with any claim to joint ownership.

[15] While I have concluded that the appeal does not raise a serious issue that passes the first part of the test for a stay, I have also considered the questions of irreparable harm and balance of convenience.

(b) Irreparable Harm

[16] The evidence does not establish that Rocco Jr. is, as Ms. Verma contends, her emotional support animal (“ESA”) for generalized anxiety, or that, in any event Ms. Verma would suffer irreparable harm to her mental or emotional health if the stay were refused.

[17] The application judge concluded, on Ms. Verma’s own evidence supported by that of a social worker, that Rocco Jr. was not an ESA. The additional evidence on this motion from her family doctor and psychotherapist is essentially an extension of the evidence that the application judge rejected. At its highest, it confirms Ms. Verma’s self-reported emotional distress and reliance on Rocco Jr. as a source of comfort.

[18] Further, irreparable harm in the context of a stay motion is harm that flows from the denial of a stay: Belton v. Spencer, 2020 ONCA 623, 58 C.P.C. (8th) 16, at para. 51. The evidence, including that of her health care providers, suggests that Ms. Verma’s anxiety is instead significantly related to the underlying litigation. In any event, Ms. Verma has known since the litigation began that she is in possession of the dog without the consent of Mr. Carvalho’s legal representatives. She has also known since the order under appeal was made, that absent a stay she would be required to part with the dog by March 15. She has had time to put in place other measures to address her anxiety.

(c) Balance of Convenience

[19] Finally, I have concluded that the balance of convenience favours the responding party. The affidavits of the estate trustee and her sister describe their distress for the dog’s well-being and whether he would ever be returned. Their concern is understandable given Ms. Verma’s past conduct, particularly in her use of self-help measures to gain access to Mr. Carvalho’s home after his death and take Rocco Jr. How the dog came into her possession is a factor that weighs against the equitable relief she is seeking.

[20] The responding party also pointed to aspects of Ms. Verma’s social media campaign, including misleading posts about the litigation and favorable responses to comments encouraging her to run away with the dog and to use violence against Mr. Carvalho’s family. I agree that these circumstances weigh against the granting of a stay.

Conclusion and Costs

[21] For these reasons the motion for a stay was dismissed. While there was no suggestion that anyone had the intention to sell or give away Rocco Jr., it is understood and so ordered that the dog shall be preserved by Mr. Carvalho’s family pending the disposition of the appeal.

[22] Having reviewed the parties’ costs outlines, I award the responding party her partial indemnity costs of the motion in the inclusive sum of $20,000.

“K. van Rensburg J.A.”