Lawyers discuss sealing orders after SCC hears arguments of Sherman estates case

Estates case raises the issue of how to balance open courts principle and personal privacy rights

Lawyers discuss sealing orders after SCC hears arguments of Sherman estates case
The Sherman case was heart at the Supreme Court of Canada on Oct. 6.

The Supreme Court of Canada’s decision on whether to unseal the court files relating to the estates of Bernard and Honey Sherman has brought the question of sealing orders to the fore.

The court reserved its judgment in the case that involves the still unsolved murders in 2017 of the Shermans, a Toronto-based couple who were billionaires. The case raises the issue of how to balance the open courts principle, which dictates that court proceedings be accessible to the public and to the media, and the fundamental right to privacy.

A blog post by James Zaitsoff of Owen Bird Law Corporation on BCEstateLitigation.ca stressed that, in B.C., the open courts principle will generally outweigh the right to privacy when it comes to estate matters, which will inevitably involve documents with private and sensitive information.

“Estate litigation, which is often between family members, relating to determination of the validity of the will, issues of testamentary capacity or undue influence, and variation of wills can be highly contentious and highly emotional,” wrote Zaitsoff in the blog post. “This frequently results in the airing of personal and private matters in the courts, which means they become public.”

Although one may apply for a sealing order to restrict the access of the public and the media to the court records, the court will rarely grant such order because it is an exception to the open courts principle, Zaitsoff wrote.

In a commercial and estate litigation blog post for Wagner Sidlofsky LLP, James Dunphy wrote that seeking a sealing order is a challenge even if all the parties have consented to the sealing order because the court does not consider the parties’ agreement when weighing whether to grant the order. The court will seek to protect the open court principle even more if the sealing order is sought ex parte, Dunphy added.

“Counsel should be aware that the courts will interfere with public accessibility to court records only with the greatest reluctance,” wrote Dunphy. “Counsel should be prepared to state why a sealing order is required in the public interest and why no lesser protective measure would be appropriate.”

In Toronto Star Newspapers Ltd. v. Sherman Estate, 2018 ONSC 4706, the Ontario Superior Court of Justice upheld the sealing orders, which would expire in two years, and dismissed the application filed by the Toronto Star and its reporter Kevin Donovan, which sought to terminate or vary the sealing orders. The court cited the two-part test on whether to grant a sealing order, which requires the applicant to show the necessity of the order for the prevention of a serious risk to an important interest that cannot be protected through alternative means and the salutary effects of the order, which outweigh its deleterious effects.

The Superior Court concluded that there was a reasonable apprehension of risk to the trustees and beneficiaries of the estate because of the lack of information regarding the identity or the motives of the perpetrators of the murder.

In Donovan v. Sherman Estate, 2019 ONCA 376, the Ontario Court of Appeal reversed the Superior Court’s decision and set aside the sealing orders. The appeal court stated that privacy concerns, on their own, cannot justify the issuance of a sealing order involving material ordinarily accessible by the public. The appeal court said that the lower court’s finding that the trustees and beneficiaries were at risk because the identity or the motives of the killers were unknown amounted to speculation.

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