Today’s blog was written by Aniket Bhatt, law student at Fasken LLP

Court proceedings are presumptively open to the public. As a result, matters in a probate file are no exception. For example, obtaining a certificate of appointment of an estate trustee in Ontario is a public court proceeding. However, sealing orders are available in civil litigation cases to protect parties from harm or safeguard sensitive information. In these situations, the courts must balance the importance of protecting sensitive information and the open court principle.

On June 11, 2021, the Supreme Court of Canada released its decision in the high-profile case of Sherman Estate v. Donovan, 2021 SCC 25 (“Sherman”), outlining that there must be a risk to public interest for a sealing order to be successful. In this case, Justice Kasirer held that there must be an affront to a person’s dignity in the case of a privacy concern. Alternatively, a significant and real risk of physical safety may also be sufficient. In turn, the Supreme Court of Canada has set a high bar for determining if a sealing order should be granted.

Background

In December 2017, Barry and Honey Sherman were found dead in their homes. The case was high-profile as the couple were closely affiliated to Apotex Inc., a Canadian pharmaceutical company, and had an estimated net worth of USD 3.2 billion. Further, their deaths are still being investigated as homicides, and the identity and motive of those responsible are unknown. As a result, the trustees of their estate sought a sealing order to matters related to the estate’s probate. Primarily the estate trustees argued that there were both privacy and public safety concerns that warranted a sealing of the files. The request was initially successful as the application judge sealed the probate based on privacy and physical safety concerns. However, in July 2018, a major Canadian news outlet appealed the sealing order. The Ontario Court of Appeal set aside the sealing order because the privacy interest lacked a public interest quality, and there was insufficient evidence of any real risk to physical safety. The Ontario Court of Appeal decision can be found here.

The Sierra Test

The Supreme Court of Canada dismissed the appeal. Justice Kasirer utilized the two-part common law test set out in Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41 (“Sierra”) to determine if a sealing order should be granted in contrast to the open court principle. The Sierra test aims to exam the necessity and proportionality of the requested sealing order. To succeed, the party requesting a sealing order must establish that:

1. court openness poses a serious risk to an important public interest (e.g., privacy and physical safety);
2. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
3. as a matter of proportionality, the benefits of the order outweigh its negative effects.

A party must establish that all three prerequisites have been met to justify limiting the open court principle. In this case, the Sherman Estate failed to establish that disclosing the files in the Sherman Estate would endanger the estate, trustees, or family members. Further, the Sherman estate trustees failed to establish that lifting the sealing order would deleteriously impact any individual’s dignity. The court stressed that the information would have had to be sufficiently sensitive that it would strike at the biographical core of the affected individuals. Justice Kasirer also noted that while public scrutiny may cause inconvenience or embarrassment to members of the estate, it is not sufficient to overturn the strong interest in maintaining the open court principle.

Conclusion and Next Steps

Going forward, the Supreme Court of Canada has set a high bar in establishing when a sealing order should be granted. A party must establish that court openness poses a serious risk to public interest, reasonable alternative measures would not prevent the risk, and the benefits of the order outweigh its negative effect. Justice Kasirer also highlights that the Sherman estate has other potential methods to maintain privacy. For example, the court notes that an order imposing a publication ban may potentially restrict the dissemination of unnecessary personal information. However, the court also notes that a publication ban would require a separate assessment of the seriousness of the privacy risk.