SCC Grants Leave to Appeal for Sealing Order in Sherman Estate
The Supreme Court of Canada (“SCC”) recently granted leave to appeal in the Sherman Estate’s legal battle to keep its probate application private. The appeal will provide the court with an opportunity to revisit the stringent legal test for sealing orders, an issue that has gone largely undiscussed for nearly two decades. Sealing orders, which keep court files confidential and bars them from forming part of the public record, are very much the exception under Canadian law. With s.2(b) of the Charter in play, courts are reluctant to seal case files even when, as we will see, the privacy and dignity of victims of violent crime and their loved ones are in question.
The bodies of Barry and Honey Sherman were found in their home on December 15, 2017. Both were victims of a double homicide which remains unsolved. Barry Sherman, once one of Canada’s wealthiest, earned much of his wealth from founding Apotex, a pharmaceutical giant. By its nature, the death of two of the country’s most prominent philanthropists sparked global media attention, which has not since relented.
On June 28, 2018, the executors under the Estate of Barry and Honey Sherman did as any ordinary individual in their position would do and appeared in court to apply for probate. While there, however, an application to seal the court files was requested. In a rare move, the motion judge found merit and made ex parte orders to seal court files, preventing public access. The Toronto Star and Kevin Donovan, its Chief Investigative Reporter, brought a motion to terminate or vary the sealing orders. The trial judge dismissed the motion and preserved the sealing orders for two years. Donovan (the Toronto Star had since removed its name from proceedings) appealed to the Ontario Court of Appeal (the “ONCA”), where the appeal was allowed (Donovan v. Sherman Estate, 2019 ONCA 376) [Sherman ONCA] and the trial judge’s decision overturned.
Current Legal Test for Sealing Order
Media access to court proceedings is a fundamental freedom guaranteed by the Charter under s. 2(b). (R v B(C),  2 S.C.R. 480). This “open court” principle which provides that court proceedings are open to the public is grounded on the guarantee of freedom of expression and freedom of the press under s. 2(b) of the Charter. It has been characterized as “the very soul of justice” as it “acts as a guarantee that justice is administered in a non-arbitrary manner” (Canadian Broadcasting Corp. v. New Brunswick (AG),  3 SCR 480). This principle will only be limited under certain exceptions and when such an exception may arise, the onus rests on the party seeking to deny public access to the proceedings and records (R v Mentuck, 2001 SCC 76).
The current two-stage legal test for granting a sealing order comes from a 2002 decision of the Supreme Court of Canada in Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41 [Sierra Club]. First, the party seeking the order must demonstrate that the order is necessary to prevent a serious risk to an important public interest which cannot be protected by reasonable alternative method (Sierra Club, 53). Requisite necessity must be demonstrated before moving onto the second stage of the test. This next stage is a balancing of the salutary effects against the deleterious effects, including the negative effects on the right to freedom of expression and other public interests served by open and accessible court proceedings (Sierra Club, 53).
Ontario Court of Appeal
At trial, Dunphy J. granted a sealing order, finding the Estate satisfied both stages of the test. On appeal, Doherty, Rouleau and Hourigan JJ.A together found the trial judge erred in his application of the Sierra Club test, specifically in his reasoning at the first stage. The trial judge relied on the family’s desire for privacy as well as the dignity for the victims and their loved ones for justification of a sealing order. These concerns, the ONCA clarified, are only given meaning at the second stage of the test, rather than at the first when proving necessity. The court goes on to explain that while the desire for privacy for a particular group of individuals is no doubt understandable, it is not proper justification for a sealing order as it fails on the public interest component.
The trial judge further identified the risk of harm to the beneficiaries under the Sherman Estate as rationale to seal the court proceedings and documents. He reasoned that because of the circumstances surrounding the murders of Shermans, specifically that the identity of the perpetrator(s) and their motives are unknown, the personal safety of the beneficiaries under the estate are at risk. It is on this basis, the ONCA concluded, that the trial judge largely justified his decision. The court found that in his emphasis on the nature of the Shermans’ deaths, the possible motives, and the unknown identity of the person or persons at fault, the trial judge participated in what the court calls “speculation”, providing no basis for a sealing order (Sherman ONCA, 16). While the protection of an identifiable group of people would be in the public interest, the respondent did not provide adequate evidence to support a finding of a real risk (Sherman ONCA, 12). The order therefore, was not shown to be necessary to prevent a serious risk to an important public interest and failed the first stage of the test.
Stay Granted, Pending Leave to Appeal to SCC
Following the decision, the Estate immediately applied and earned (Donovan v. Sherman Estate, 2019 ONCA 465) [Stay of Sherman] a stay of the ONCA decision under section 65.1 of the Supreme Court Act, RSC 1985, c S-26. If not for a stay of the decision, the appellant’s success at the ONCA would result in the “unsealing” of the court materials 10 days following the decision. The Estate satisfied the three-part test from RJR-MacDonald Inc v Canada (AG),  3 SCR 199, in proving that a) a serious question is to be determined, b) the moving party will suffer irreparable harm, and c) the balance of convenience weighs in favour of a stay. In granting the motion for a stay of its own decision, the court found that despite its ruling, “leave to appeal to the Supreme Court has some arguable merit” (Stay of Sherman, 16). Consequently, the Supreme Court agreed with this particular point and granted leave to the Estate in October 2019, less than half a year after the ONCA decisions. The Supreme Court will hear the appeal on March 26, 2020.
There is little doubt that the highly publicized circumstances surrounding the Sherman Estate combined with the copious degree of wealth involved have played a role in the appeal process – both in the granting for leave and in each courts’ rationale. Sealing orders are certainty not a common legal test heard by Canada’s highest court. Though, it is also not every day that the courts are asked to rule on a sealing order motion involving an estate worth billions after its testators are murdered. And as the Estate argues, it is this amount of money and the suspicious circumstances surrounding the deaths of the Shermans that arguably put the beneficiaries’ lives at risk and could justify a sealing order. Still, it seems the ONCA reached the correct decision. Without evidence indicating the beneficiaries under the estate are at risk of serious harm, mere speculation cannot be the basis for a sealing order. And while one can empathize with the beneficiaries, employing the desire for privacy as justification for infringing on free expression and freedom of the press would significantly water down the rigorous test set out by the SCC. It is unsurprising then, that the ONCA didn’t give much weight to the trial judge’s reasoning and overturned the sealing order rather quickly. What is confounding, however, is that the Supreme Court granted appeal in a decision that the Court of Appeal only used seven pages to pen. One may question whether the Supreme Court’s motivation is related to the facts and circumstances specifically or to seize the opportunity to clarify the legal test for sealing orders.
Ultimately, whether the judicial treatment that led this case all the way to the country’s highest court is a result of extreme privilege or just how the legal test plays out under rare circumstances is a matter of perception. One thing is for certain however, the average group of beneficiaries would not be in a position to front the requisite legal fees to get there. Fortunately for the sake of expanding jurisprudence, the Shermans are not average.