The Applicant, Nicolette Saina, applied to Stay the enforcement of a Chambers Judge Order pending Appeal. The Order directed her eviction from the home of her mother, Bernice MacRae, and permitted the Respondents, Roxanne Shepansky and Duke MacRae, pursuant to their authority under an Enduring Power of Attorney, to sell the home.

Bernice was 83 years old and had been living with Alzheimer's for many years. Until May 2024, she resided in her own house, until she was relocated to a long-term care facility. Ms. Saina opposed Bernice being placed in an extended care facility and wanted her returned to the house under Ms. Saina’s care, where she could implement an experimental holistic protocol of naturopathic medicine.

An application to stay the enforcement of an order pending appeal may be brought pursuant to Rule 14.48. A stay may be granted if the applicant establishes (i) an arguable issue to be determined on appeal; (ii) that the applicant will suffer irreparable harm in the absence of the stay; and that (iii) the balance of convenience favours granting the stay. The Court analyzed these factors.

Ms. Saina demonstrated arguable issues for appeal. Her Appeal raised the concern that the Chambers Judge did not, among other things, properly consider all relevant factors in deciding to grant the eviction and sale Order. For instance, the Judge acknowledged that there was a funding deficit, and the house needed to be sold to cover Bernice’s care, but did not address Ms. Sanina’s evidence of a budget or her ability to fund care. Additionally, the Chambers Judge accepted that Bernice could not return home due to her advanced dementia, but did not provide reasons for this conclusion or evaluate the best care option for her.

While Ms. Saina presented some evidence of potential care alternatives if Bernice were to stay in her home (mainly therapeutic benefits), the risk of irreparable harm if the house was sold was considered minimal, as Bernice’s needs would have been met at the memory care facility. Ms. Saina also argued that selling the house contradicted Bernice's wishes expressed in a 2019 “Personal Directive”, purporting that she wanted to stay in her home for the rest of her life; the Court of Appeal found this unconvincing and suspect. It was found that this factor must be weighed against the fact that the Respondents were the legitimate attorneys and agents, and Bernice’s intentions would be frustrated if Ms. Saina effectively assumed those roles. The possibility of irreparable harm was further diminished by the fact that the Appeal was categorized as a fast-track appeal, and the Respondents’ evidence was that the house required some repairs, which would take months to complete.

Turning to the balance of convenience, the Court began by noting that Bernice, who had been receiving care at a private facility for about nine months, was receiving quality care; there was insufficient evidence that she would benefit more from returning home. The Court was therefore hesitant to disrupt the status quo without compelling evidence. Financially, there was also no solid plan to cover Bernice's care costs, and the Respondents' evidence showed that Bernice’s estate was running a deficit, relying on the sale of the house to cover costs. Therefore, the balance of convenience favored maintaining Bernice’s current care at the facility and granting the stay would have likely disrupted her stable situation.

Ms. Saina’s Appeal was dismissed.