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Sherman Estates: Supreme Court of Canada Reviews Sealing of Estates Files

On June 11, 2021, The Supreme Court of Canada (‘SCC’) released the decision relating to the public sealing of Court documents with respect to the Estates of Barry and Honey Sherman (‘Estates’).[1]  In a unanimous decision, the SCC ruled in this circumstance, that documents relating to the Estates should not be sealed.  The potential risk of harm to the Estate Trustees and the beneficiaries were not present, and therefore could not lead to a restriction of the public rights of open Court, which is guaranteed by the Charter of Rights and Freedoms.[2]

Tragically on December 15, 2017, the bodies of the billionaire married couple, Barry and Honey Sherman, were found dead inside their Toronto home under suspicious circumstances.  To date, there has not been any charges of murder.  The mystery remains unsolved, despite an ongoing homicide investigation by the Toronto Police.[3]

Early in his investigation, Chief Investigative Reporter for the Toronto Star Newspaper Kevin Donovan, attempted to find more information pertaining to the suspicious deaths of the Sherman’s, and to learn and report on information as it relates to the Sherman Estates (‘Estates Files’).[4]

When Mr. Donovan approached the Estates office in the Ontario Superior Court of Justice, he was surprised to learn that the Estates Files were sealed, and he was not able to acquire the information he had obtained so many times before in his investigations, as these files were public record.

Mr. Donovan sought to challenge the decision to seal the Estates Files by commencing an Application before the Ontario Superior Court of Justice.  Mr. Donovan learned that the Sherman Estates and Estates themselves (‘Appellants’) had applied for a Sealing Order without notice to the media.[5]

Throughout the proceedings, the Appellants, have vigorously fought the unsealing of the Estates Files at every stage of litigation, including the Ontario Superior Court of Justice (OSCJ), the Ontario Court of Appel (ONCA)[6], and the SCC.[7]

The Appellants argued throughout that the litigation that the Estate Trustees and beneficiaries for the Sherman Estates had real privacy and security concerns.  The Appellants argued that because of the murders, and unsolved investigation, the privacy and security concerns justify overriding the fundamental principles of justice that assures Canadians of access to Court proceedings and records.[8]

In the initial Application Decision, the Court ruled that the Appellants satisfied the Sierra Club test, and the Estates Files would be sealed for a two-year period.

The ONCA heard the Appeal in April 29, 2019 and held that the Application judge did not apply the Sierra Club test correctly by not meeting the ‘privacy’ and ‘security’ concerns from the Sierra Club test.[9]

When referring to the ‘privacy test’, the ONCA stated at paragraph 10:

“The kind of interest that is properly protected by a sealing order must have a public interest component. Personal concerns cannot, without more justify an order sealing material that would normally be available to the public under the open court principle.”[10]

Evidently, the ONCA required “more” to justify a sealing order with respect to the Estates Files.

Similarly, with the ‘security test, the ONCA stated that there was no evidence presented that amounted to a finding that the disclosure of the Estates Files posed a real risk to personal safety.[11]  As such, the ONCA ruled the Estates Files to be unsealed.

The principal test to determine whether a Court will seal documents is outlined in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (‘Sierra Club’) that privacy with something more can override openness under the Sierra Club test, but personal concerns without something more cannot lead to a court overriding the public rights to openness.

With respect to the June 11, 2021, SCC decision, again the issue on appeal to Canada’s highest Court was whether the previous decision of the ONCA to unseal the Estates Files, was correct. The Court ruled unanimously that the Sierra Club test was not met and the Estates Files were ordered to be unsealed.[12]

The SCC decision was clear an unequivocal in balancing the factors a Court must consider in pertaining to serious risk to security and privacy, versus the fundamental rights of the public interest.  The Court dismissed the appeal and stated,

The estate trustees have failed to establish a serious risk to an important public interest under the test for discretionary limits on court openness. As such, the sealing orders should not have been issued. Open courts can be a source of inconvenience and embarrassment, but this discomfort is not, as a general matter, enough to overturn the strong presumption of openness. That said, personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person’s dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest and a court can make an exception to the open court principle if it is at serious risk. In this case, the risks to privacy and physical safety cannot be said to be sufficiently serious.[13]

Counsel for Mr. Donovan wrote “This principle of openness, constitutionally protected, is foundational to our democracy and critical to the public’s confidence in the administration of justice.”[14]

In summary, and with a particular emphasis on probate, the SCC stated,

Matters in a probate file are not quintessentially private or fundamentally administrative. Obtaining a certificate of appointment of estate trustee in Ontario is a court proceeding engaging the fundamental rationale for openness — discouraging mischief and ensuring confidence in the administration of justice through transparency — such that the strong presumption of openness applies.[15]

[1] Sherman Estate v Donovan 2021 SCC 25.

[2] IBID.

[3] Wilson, Cody It’s been 3 years since Barry and Honey Sherman were found dead Court documents reveal what we know so far, CTV December 15, 2020.

[4] Factum of the Respondent Kevin Donovan re S.C.C. No. 38695, March 9, 2020.

[5] Toronto Star Newspapers Ltd v Sherman Estate 2018 ONSC 4706 (Application Decision).

[6] Donovan v Sherman Estate, 2019 ONCA 376 (‘Appeal Decision’).

[7] Sherman Estate v Donovan 2021 SCC 25.

[8] IBID page 1, paragraph 3.

[9] IBID page 4, paragraph 10, 11

[10] Appeal Decision at paragraph 10

[11] IBID paragraph 13.

[12] Appeal Decision.

[13] Sherman Estate v Donovan 2021 SCC 25.

[14] Factum of the Respondent Kevin Donovan re S.C.C. No. 38695, March 9, 2020, page 1, paragraph 1.

[15] Sherman Estate v Donovan 2021 SCC 25.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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