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June 2021

Open Court Principle Prevails

Case Study: Sherman Estate v Donovan

Howard Borlack
Howard Borlack,
Partner

Winona Fitch
Winona Fitch
Student-at-Law

by Howard Borlack and Winona Fitch

The decision of the Supreme Court of Canada in Sherman Estate v Donovan (2021 SCC 25) reinforces the open court principle as a constitutionally entrenched right of freedom of expression and thereby a justified limit on the right to privacy. The Trustees of the Sherman Estate lost their appeal to keep probate documents sealed as they did not meet the threshold of proving that court openness presented a serious risk to the public interest.

Background
In December 2017, prominent business and philanthropic couple Bernard and Honey Sherman were found dead in their Toronto home. The strange circumstances surrounding their deaths as well as the high-profile status of the victims led to great public interest and press scrutiny of the case. Currently, their deaths are being investigated as homicides by the Toronto police although no potential suspects or possible motives have been identified to date.

In an attempt to curtail the public intrigue surrounding the suspicious nature of the events and the large sums of money involved, the estate trustees sought a sealing order of the probate files to protect the privacy and safety of the trustees and beneficiaries involved. While this order was initially granted, the decision was challenged by Kevin Donovan, a journalist with the Toronto Star. Mr. Donovan said that the orders violated the constitutional rights of freedom of expression as well as the principle of court openness or that court proceedings should be open to the public as a means of transparency to the democratic process. The Court of Appeal agreed with Mr. Donovan and the Toronto Star and concluded that the privacy interest sought lacked the quality of public interest and the order that probate files should be made public was stayed pending the decision of the current appeal.

...as a matter of proportionality, the benefits of the order outweigh the negative effects.

SCC Decision
The appeal turned on whether the concerns for privacy of the affected individuals and their physical safety amounted to important public interests that are at serious risk should the file be made public. The test for discretionary limits on court openness from Sierra Club requires that the person asking a court to use its discretion must establish that

  1. the court openness poses a serious risk to an important public interest;
  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 the negative effects.

The SCC agreed with the appellate decision that there was no serious risk to public interest and the appellants failed to establish the first part of the test. While privacy can amount to a public interest, some degree of privacy loss resulting in encumbrance, upset or embarrassment is inherent in any court proceeding. The threshold for private information posing a serious risk to public interest is not whether the information is personal to the individual concerned, but whether the information is sufficiently sensitive to “strike at the biological core” of the affected individual so that publication would cause them to suffer an affront to their dignity.

The court found that the information contained in the probate files was not sensitive enough to reach this narrower threshold, nor did the nature of the information pose any real or inferred risk to the physical safety of the affected individuals. Therefore, because the appellants failed to show how lifting the sealing orders would affect the dignity of the affected individuals, there was no serious risk to the public interest that warranted limiting the open court principle.

Conclusion

There is a strong presumption in favour of open courts. The high bar to limit the open court principle is a justified limit on the right to privacy and an important public interest concerning the protection of dignity will only be understood to be seriously at risk only in limited circumstances.


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