In the recent case of Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court of Canada considered whether a sealing order should be applied to the application for probate for the high profile estates of Bernard Sherman and Honey Sherman.
Background
The homicide investigation into the deaths of Mr. Sherman and Ms. Sherman has generated intense media attention, partly because of the sensational nature of the deaths and the apparent lack of any motive or suspect, and because of the Shermans’ vast wealth. The media interest in the distribution of the estates is particularly intense because of the speculation that they could hold insights into a motive for the deaths.
The trustees for the Sherman estates applied for sealing orders for the couple’s probate files before the Ontario Superior Court of Justice. Probate applications are public documents, like all documents filed with the court, and they disclose detailed information to the public about the assets of the deceased and the distribution of the assets to the chosen beneficiaries of the estate. A sealing order would remove the probate file from the public record and prevent the public from accessing it. The trustees for the Sherman estates sought, and were granted, sealing orders on the basis that the intense media scrutiny and the unresolved homicides put the estate trustees and the beneficiaries of the Sherman estates at substantial risk if a sealing order was not granted. The application judge granted an initial two-year sealing order, with a possibility for renewal.
Kevin Donovan, a reporter for the Toronto Star Newspaper, and the Toronto Star Newspapers Ltd. challenged the sealing orders before the Ontario Court of Appeal on the basis that the sealing orders interfered with their constitutional rights of freedom of expression and freedom of the press and were in violation of the open court principle. The open court principle provides that the workings of the courts should be open to the public as a means of guaranteeing the fair and transparent administration of justice. The Ontario Court of Appeal allowed the appeal and set aside the sealing orders on the basis that there was no evidence before the court that the trustees and beneficiaries were at risk simply because the Shermans had been murdered and that the media was interested in the estates.
The open court principle and its limits
A fundamental presumption of the Canadian court system is that courts are open to the public and to restrict public access infringes upon the open court principle, which has been enshrined under section 2(b) of Canadian Charter of Rights and Freedoms.
In Sherman Estate v. Donovan, the court confirmed that the open court principle is engaged by all judicial proceedings, including applications for probate.[1] The trustees had argued that probate applications did not engage the open court principle or that they have no public value because they are administrative in nature.
Prior to Sherman Estate v. Donovan, the Supreme Court of Canada provided a two-part test for displacing the presumption of the open court principle, which is known as the Sierra Club analysis. An applicant must demonstrate that:
- the confidentiality order is necessary to prevent a serious risk to an important interest and reasonably alternative measures will not prevent the risk; and
- the salutary effects of the order outweigh the deleterious effects of the order (specifically the infringement of freedom of expression and the open court principle).
The Sierra Club analysis required the court to balance the public’s interest in allowing some proceedings to be confidential (necessity) and the public’s interest in open courts (proportionality) when determining whether a sealing order, publication ban, pseudonym, redaction or exclusion of the public from a hearing is appropriate.[2]
Justice Kasirer, writing for the majority, recast the Sierra Club analysis as follows:
[38] …In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:
(1) 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 its negative effects. [3]
Each of these elements must be met for a court to grant a discretionary limit on public access, such as a sealing order, a publication ban, an order excluding the public from a hearing or a redaction to the court record. The trustees failed to establish that the risk to privacy and safety were, on the facts, serious risks to an important public interest. Since the trustees had failed to establish the first part of the test, they were also not entitled to less restrictive forms of restrictions to public access (such as publication bans and redactions of the court record).[4]
Conclusion
The Supreme Court of Canada’s decision in Sherman Estate v. Donovan has confirmed that the open court principle applies to all judicial proceedings, even those that are administrative in nature. Although the principles and case law developed under the Sierra Club analysis still apply, a subtle shift has occurred. The first element of the recast analysis requires the applicant to prove that court openness itself poses a serious risk to an important public interest, not whether the confidentiality order is necessary to prevent a serious risk to an important interest.
The gatekeeping function of the first element in the recast test in Sherman Estate v. Donovan will likely be a high bar for applicants to meet in future cases where the entitlement to a confidentiality order has not been well established.
[1] Sherman Estate v Donovan, 2021 SCC 25 at paras 44-45 [Sherman Estate].
[2] Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 [Sierra Club].
[3] Sherman Estate at para 38.
[4] Sherman Estate at para 107.
