Sherman Estates v Donovan : Privacy Interests and the Presumption of Open Courts
In 2017, the bodies of billionaires Bernard Sherman and Honey Sherman were discovered in their home in Toronto, Ontario. Not only was the couple highly acclaimed for their philanthropism, but Barry was known for his pharmaceutical pursuits as the founder and CEO of Canadian generic drug company Apotex. Police deemed the deaths of Barry and Honey a double homicide, and news outlets quickly reported developing theories of possible motives behind the couple’s murder. Given the high press that the Sherman’s death solicited, all records and information on the couple were highly disseminated and dissected.
While much press was given to the mysterious circumstances surrounding the death of the couple, the deceased couple’s probate file also became a contested issue. The Sherman’s estate trustees sought an order to seal the probate orders in order to curb the intense coverage of the division of their estate. The application judge agreed with the trustees that the probate records should be sealed, but was later overturned at the Court of Appeal. The trustees appealed to the Supreme Court of Canada (“SCC”) in Sherman Estate v Donovan, 2021 SCC 25 [Sherman].
On October 6, 2021 the matter went to the SCC where the highest court considered whether the couple’s probate files should be accessible to the public in accordance with the principle of open justice, or whether they should be sealed to protect the privacy interests and the safety of those involved. In a unanimous decision written by Justice Kasirer, the SCC affirmed the Court of Appeal’s decision to lift the sealing orders. The SCC agreed with the Court of Appeal that the type of interest engaged must have a public quality and must also engage a serious risk to that interest (Sherman, para 62). Notably, the court analyzed and rearticulated the test for discretionary limits on court openness as introduced in Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41,  2 S.C.R. 522 [Sierra Club] discussed below.
The Probate Records
The crux of the proceedings began with the trustee’s application for probate at the Superior Court of Justice. As outlined in the Estates Act, RSO 1990, c E21.
7 (1) An application for a grant of probate or letters of administration shall be made to the Superior Court of Justice and shall be filed in the office for the county or district in which the testator or intestate had at the time of death a fixed place of abode.
Once an application for probate is granted, the court certifies a will by issuing a letter confirming that it is valid. A grant of probate either grants individuals the authority to act as the estate trustee or confirms the appointment of a trustee. To apply for probate, the original will and any supplementary information are provided to the court. In addition, the estimated value of the estate and its assets are presented. Probate records are accessible at the court registry unless they are sealed.
The Trustees Argument for the Sealing of the Probate Records
At issue in Toronto Star Newspapers Ltd v Sherman Estate, 2018 ONSC 4706 [Toronto Star], the Toronto Star argued that the probate records should be public. On the contrary, the Sherman’s trustees submitted that if public, the probate records could threaten their lives and those listed in the will. The trustees argued that sealing the probate records was necessary to ensure the safety and privacy of those involved. Using the SCC’s judgement in Sierra Club, the application judge reiterated that there is a narrow exception to when a confidentiality order shall be granted. This narrow exception is when:
(1) such an order is necessary . . . to prevent a serious risk to an important interest because reasonable alternative measures will not prevent the risk; and
(2) the salutary effects of the confidentiality order outweigh its deleterious effects, including the effects on the right to free expression and the public interest in open and accessible court proceedings (Toronto Star, para 13(d)).
The application judge emphasized that the exception to the open court principle was met by the two legitimate interests advanced by the trustees (Toronto Star, para 22). In the first interest, the application judge articulated that the high publicity of the Sherman murders and affairs was an affront to the privacy and dignity of the family. In the second interest, the application judge accepted the trustees’ arguments that the safety of the trustees could be at risk given the brutal murders of the Shermans and the fact that their killer(s) were still at large. However, the judge noted that it would have been beneficial for evidence of the serious threat or danger to have been proven through objective evidence such as police records. To remedy the lack of objective evidence, the judge considered the brutality of the murders, deeming the heinous murders to be proof of the trustee’s legitimate fear.
The application judge ruled in favour of the trustees and sealed the files for two years after which the sealing order could be renewed.
The Court of Appeal’s Decision to Overturn the Sealing Order
Toronto Star journalist, Kevin Donavon, appealed the decision to the Court of Appeal in Donovan v Sherman Estate, 2019 ONCA 376. Donavon, who was familiar with the Sherman murders through his investigative reporting, argued that the application judge’s decision went against Charter values of freedom of expression, freedom of the press, and the open and transparent court principle.
The Court of Appeal agreed with Donavan, and held that the risk to public safety was not warranted given the facts at hand and that the first branch of the Sierra Club test was not met. The circumstances did not amount to a risk to public safety that would warrant sealing the probate files. The Court of Appeal overturned the trial judge’s decision and ruled that the probate files be unsealed.
The Supreme Court’s Affirmation of the Court of Appeal’s Judgement
The case went before the Supreme Court of Canada as the trustees argued that the Court of Appeal made two grave errors. First and foremost, the trustees argued that privacy and dignity are important factors of public interest and that the public interest was subject to a serious risk, therefore justifying the confidentiality order. Secondly, the trustees argued that courts have the discretion to draw “reasonable inferences by applying reason and logic even in the absence of specific evidence of the alleged risk” (Sherman, para 24).
In addressing the trustees’ arguments, the Court framed the question as whether the information is highly sensitive enough that if it were accessible, it would “occasion an affront to their dignity that society as a whole has a stake in protecting” (Sherman, para 33). This was the basis for which the SCC made their unanimous judgement.
Discretionary Limits as Per the Sierra Club Analysis
Although originally articulated as a two-part test by the SCC in Sierra Club, the SCC reframed the test and distilled it into three parts. This new articulation of the Sierra Club test holds that in seeking to limit the open court principle and exercise discretion, it must be established that:
- court openness poses a serious risk to an important public interest;
- the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and
- as a matter of proportionality, the benefits of the order outweigh its negative effects (Sherman, para 38(1-3)).
Using this criterion, the Court postured that the trustees did not establish a serious risk to an important public interest, and the risk to physical safety did not meet the threshold. Regarding the latter, the analysis does not merely rest on whether the harm is probable, but it must also rest on the gravity of the harm. In the SCC’s view, the contextual balancing of the benefits was not enough to outweigh the negative effects of sealing the file. As such, the probate records remained unsealed, and the appeal was dismissed.
This case is important for re-defining the Sierra Club test and for the Court’s definition of privacy. This new conception of privacy will impact the way future litigants challenge the presumption of open courts. The Toronto Star argued that if privacy was broadly understood as a public interest, then the public interest would constantly be engaged in private proceedings.
Additionally, this case has important ramifications for the interaction between the administration of justice and its effect on litigants and society. The SCC stated that “the administration of justice suffers when the operation of courts threatens physical well-being because a responsible court system is attuned to the physical harm it inflicts on individuals and works to avoid such effects” (Sherman, para 72). To prevent inflicting physical harm, the court considered Section 8 of the Charter. Specifically, the Court held that information that “is significantly sensitive such that it can be said to strike at an individual’s biographical core” will engage the privacy interest (Sherman, para 35). Once it is established that the information engages the privacy interest, the SCC says it must be found that the information would cause a serious risk that “without an exceptional order, the affected individuals would suffer an affront to their dignity” (Sherman, para 35). This, the Court maintains, is appropriate contextual balancing.
Many intervenors had an interest in this balancing. For example, sexual orientation, HIV status, substance abuse, and criminality all engage aspects of an individual’s privacy. If individuals wish to keep these matters private, future court’s interpretation of what “strikes at an individual’s core” could have serious implications. In the case at hand, it was Barry and Honey’s trustees and family (and not the immediate couple) that wanted to limit the public scrutiny they themselves would face. These facts will differ in situations where those directly engaged will be confronted with publicity and judgement should information be publicly accessible. Courts will need to be cognizant of the role they play in deciding what matters strike at one’s core and whether such scrutiny is fairly balanced. While not directly at issue in this appeal, the impact of the Sherman decision on matters that engage the “biographical core” remains to be seen in future jurisprudence.
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