The Supreme Court of Canada has granted leave to appeal a decision of the Court of Appeal for Ontario to unseal the files and probate applications in respect of the estates of Barry and Honey Sherman (the “Sherman Estates”).

The tragic murders of the wealthy Toronto couple in December 2017 have been the subject of intense media and public interest over the past two years. There has been somewhat less publicity surrounding the probate applications in relation to the Sherman Estates, and the ex parte applications made by the estate trustees to seal the probate files. The apparent goal of the sealing order was the protection of the beneficiaries and trustees of the estates from a perceived risk of harm that could result from disclosure of the contents of the Sherman Estates files to the public.

 

The Sealing Orders at First Instance

In June 2018, applications for the issuance of a Certificate of Appointment of Estate Trustee in respect of the Sherman Estates were made to the Superior Court of Justice. Such routine applications are typically administrative in nature and are not made in open court, although the applications are typically available for public review under the open court principle. However, in the case of the Sherman Estates, the applicants sought an oral hearing to request an order sealing the court files before the applications were filed. After hearing the applications, the motion judge ordered that the files and the applications in respect of the Sherman Estates remain in his custody pending further order.

In July 2018, the Toronto Star Newspapers Ltd. and one of its investigative reporters, Kevin Donovan, brought a motion to terminate or vary the sealing orders. The motion judge dismissed the motion and preserved the sealing orders, providing however, that they would expire in two years.

In reaching his decision, the motion judge acknowledged that sealing orders that restrict public access to the court and court proceedings are exceptional. The party seeking the sealing order bears the burden of demonstrating the need for such an order. The motion judge applied the two-part test to decide whether to grant a sealing order, in which the party seeking the order must:

1. show that the order is necessary to prevent a serious risk to an important public interest which cannot be protected by other reasonable alternative methods; and
2. establish that the salutary effects of the sealing order outweigh its deleterious effects, including the negative effects on the right to freedom of expression and other public interests served by open and accessible court proceedings.

If the first branch of the test is not met, the sealing order cannot be granted and the second branch need not be considered.

The motion judge was satisfied that the sealing orders were necessary in the Sherman Estates because of (1) the need to protect the privacy and dignity of the victims of crime and their loved ones; and (2) the reasonable apprehension of risk to those who have an interest in receiving or administering the assets of the deceased.

 

The Sealing Orders Set Aside On Appeal 

Kevin Donovan appealed. In May 2019, a unanimous Court of Appeal for Ontario reversed the lower court’s decision. The Court of Appeal was satisfied that the motion judge did treat the privacy and dignity of the victims and their loved ones as an important interest warranting the protection of a sealing order. However, those concerns were relevant on a sealing order motion only if the second stage of the inquiry is reached, and the court is asked to balance the salutary effects of the sealing order against its deleterious effects. With respect to the second interest identified by the motion judge, the Court of Appeal agreed that the personal safety of individuals was undoubtably an important public interest that could warrant a sealing order in appropriate cases, provided that the evidence offered in support of the order justifies the finding of a real risk.

In the case of the Sherman Estates, the evidence submitted by the estate trustees on the motion consisted of a 13 paragraph affidavit that addressed potential risks to persons identified in the estate files in a single paragraph. The paragraph contained conclusory assertions rather than statements of fact. The affidavit did not contain any evidence from the police of any risk to the safety of anyone involved in the Sherman Estates. The Court of Appeal was of the view that there was no evidence that could justify finding that public disclosure of the content of the Sherman Estates files posed a real risk to the personal safety of anyone.

The Court of Appeal criticized the motion judge’s inference that because the identity and the motive of the murderers were unknown, anyone with an interest in receiving or administering the assets of the Sherman Estates was therefore under a reasonable apprehension of harm from the murderers. The Court of Appeal found nothing in the materials to support such an inference; the suggestion that the beneficiaries and trustees of the Sherman Estates were somehow at risk because the Shermans were murdered was speculative. Accordingly, the sealing orders were set aside.

 

The Supreme Court of Canada Grants Leave to Appeal 

The estate trustees of the Sherman Estates applied for leave to appeal the Court of Appeal’s decision to the Supreme Court of Canada. Leave was granted on October 31, 2019. In addition, the motion for a stay of execution was granted, as was the motion for an expedited hearing.

The Supreme Court of Canada does not give reasons explaining its decision to grant or deny leave. However, the party seeking leave must meet the “public importance” test under s.40 of the Supreme Court Act, which provides in part that:

[A]ny question involved [in the appeal] is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it…

Clearly, the issue of whether the sealing orders are justified in the Sherman Estates has met the “public importance” threshold, as it engages the vital public interest component of the open court principle, juxtaposed with the private interests of protecting the privacy of victims of crime, and their loved ones, from a perceived or real risk of harm. In addition, the standard of evidence required to demonstrate the risk of harm requires clarification.

We shall await the hearing and judgment. Stay tuned.