The Sherman murders remain famously unresolved and still generate headlines and notoriety. But, for better or worse, life moves on and Barry’s and Honey’s respective estates (collectively the “Sherman Estates”), however mundane, need to be probated and administered. In that regard, the Court of Appeal for Ontario (“OCA”) recently released a decision on an appeal from an order of Justice Dunphy of the Ontario Superior Court of Justice. On June 18, 2018, Justice Dunphy made ex parte orders sealing the court files relating to the Sherman Estates. Ex parte, a clever little Latin phrase that carries much weight in the legal profession, refers to a legal proceeding brought by one party in the absence of and without representation of or notification to any other party(s). On catching wind of the sealing orders, the Toronto Star, and one of its reporters (“Donovan”), brought a motion to terminate or vary the sealing orders. However, Justice Dunphy dismissed that motion and preserved the sealing orders. The Toronto Star and Donovan appealed to the OCA with Donovan eventually leading the charge and representing himself.

It is trite to say that without a sealing order, the probate applications for the appointment of estate trustees in respect of the Sherman Estates and even the motion material filed by the estate trustees of the Sherman Estates asking for sealing orders would remain sealed and not open “for public perusal under the open court principle.” Sealing orders are extraordinary remedies and very much the exception and not the rule. As the OCA noted: “a judge considering an ex parte motion for a sealing order must subject the supporting material to careful scrutiny, recognizing both the fundamental rights at issue and the disadvantage inherent in an ex parte proceeding.”

According to Justice Dunphy, a sealing order was necessary in order to protect the privacy and dignity of the victims of violent crime and their loved ones. He also referred to the reasonable apprehension of physical harm to those who had an interest in receiving or administering the assets of the Shermans. In response, the OCA wrote: “Members of the Sherman family and people closely associated with the Shermans understandably want to keep family and estate-related matters private. It is equally understandable that, having gone through the horrors of a sudden and violent death of loved ones, they want to grieve in private outside of the public spotlight. However, 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.”

After considering the two part legal test to grant a sealing order and the evidence put forward by the estate trustees of the Sherman Estates, the court found that there was no evidence put forward as to the identity of the murderers or their motive. As such, it could not be reasonably concluded that anyone receiving or administering the assets was at risk of serious physical harm.

The Sherman murders were a heinous crime and their children and close friends are grieving in the public spotlight. However, the public interest in an open court system is a powerful and persuasive principle that remains paramount. Sealing orders should not be readily granted even where the requesting party elicits much sympathy. Sealing orders must very much remain the exception and not the rule.

Litigating is never dull.

Justin