In Dispute: A Compendium of Key Cases - Lerners
Jan 13 2021
''Donovan v. Sherman Estate, 2019 ONCA 376: New test for sealing orders?
The tragic and unique facts of this case provide an opportunity for the Supreme Court of Canada to re-consider its own test, established almost two decades ago in the leading case
Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522, with respect to when a sealing order will be granted. The Supreme Court of Canada heard argument on the
Donovan v. Sherman Estate matter on October 6, 2020. Judgment is under reserve and is expected to be rendered in 2021.
It has been widely reported in the media that Bernard and Honey Sherman were brutally murdered in their home on or about December 15, 2017, and that no person has been charged with their murders. In June, 2019, the trustees of the estates of the Shermans brought
ex parte applications for the issuance of Certificates of Appointment of Estate Trustee and for orders sealing the court file. They argued that there was no public interest to be served by allowing the privacy of the victims and their family to be invaded and “adding more fuel to the publicity fire”. They also argued that the lack of tangible information about the motives and perpetrator(s) creates a reasonable apprehension of risk of physical harm to those who are the administrators or beneficiaries of the estates of the two victims. Sealing orders were granted on June 29, 2018.
In July, 2018, Kevin Donovan sought and was denied access to the estate court files. Donovan is a Toronto Star journalist, who wrote the book, “The Billionaire Murders: The Mysterious Deaths of Barry and Honey Sherman”. Thereafter, the Toronto Star and Donovan brought an application to terminate or vary the sealing orders. By order dated August 2, 2018, the application judge varied the sealing orders to provide for a two-year expiry.
Upon appeal by Donovan, the Ontario Court of Appeal set aside the sealing orders. It noted that sealing orders are exceptional because of the well-established open court principle, pursuant to which court proceedings and filings are accessible to the public. The party seeking a sealing order prohibiting access to the public bears the burden of demonstrating
both:
- that the order is necessary to prevent a serious risk to an important public interest which cannot be protected by any other reasonable alternative methods, and under this branch of the test, the nature and significance of the public interest in access to the material is irrelevant (the necessity requirement); and
- 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 (the balancing requirement).
The Court of Appeal recognized the understandable desire of the Sherman family to grieve out of the public spotlight and to keep family and estate-related matters private, but said that personal concerns, without more, cannot justify a sealing order. There must be a public interest component. It found that the personal safety of individuals is an important public interest that can warrant a sealing order, but not in this case. The application judge relied upon speculation, not evidence, about the risk of physical harm. The inference to be drawn is that evidence of a reasonable apprehension of physical harm to an individual
could be an important public interest that
could meet the “necessity” requirement of the test for a sealing order.
The Supreme Court of Canada granted the Sherman Estate’s application for leave to appeal. The issues squarely before the Court are: (1) as to the “necessity” part of the test for a sealing order, whether there is room for recognition that a party’s personal privacy rights may constitute a public interest worthy of protection by a sealing order and, if so, what evidence will be required to establish it; and (2) as to the “balancing” part of the test, how fundamental rights of privacy and the open court principle will be weighed as against each other. The open court principle is said to further the important policy objective of enhancing public confidence in the administration of justice by making court proceedings open and transparent. It is also consistent with s. 2(b)
Charter rights, and is one of the bases upon which the media invariably rely when challenging sealing orders.''