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The Supreme Court of Canada recently issued a decision upholding the unsealing of court files in relation to Barry and Honey Sherman’s estates.

The couple was murdered in 2017 and the crime remains unsolved. At the time of his death, Barry Sherman was estimated to be worth approximately US$3.2 billion.

In 2018, an Ontario court issued sealing orders in relation to probate files for the estate.

Newspaper Seeks Unsealing of Court Files

A reporter at the Toronto Star filed a motion to unseal the documents in 2018. 

The motion judge denied the request, finding that the privacy and safety concerns of the estate beneficiaries and trustees were at risk because the murders remained unsolved. 

On appeal, the Ontario Court of Appeal overturned the motion judge’s decision, finding that there was insufficient evidence of any risk that justified the sealing orders.

The estate trustees appealed to the Supreme Court of Canada, seekingto restore the sealing orders made by the application judge. They submitted that the orders were necessary to prevent a serious risk to the privacy and physical safety of themselves and the estate beneficiaries and that the salutary effects of sealing the court probate files outweighed the harmful effects of limiting court openness.

Supreme Court of Canada Dismisses Appeal

The court began by addressing the open court principle and its limited exceptions, stating:

“This Court has been resolute in recognizing that the open court principle is protected by the constitutionally‑entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.

Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press. 

Notwithstanding this presumption, exceptional circumstances do arise where competing interests justify a restriction on the open court principle. Where a discretionary court order limiting constitutionally‑protected openness is sought — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — the applicant must demonstrate, as a threshold requirement, that openness presents a serious risk to a competing interest of public importance. That this requirement is considered a high bar serves to maintain the strong presumption of open courts. Moreover, the protection of open courts does not stop there. The applicant must still show that the order is necessary to prevent the risk and that, as a matter of proportionality, the benefits of that order restricting openness outweigh its negative effects.”

The court then set out a three-part test that the person asking a court to exercise discretion in a way that limits the open court presumption must meet in order to succeed. The test requires the applicant to prove 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.

Having reviewed the parties’ submissions, the court ultimately dismissed the appeal, thereby upholding the unsealing of the probate files, concluding:

“[I]t cannot be said that the risk to privacy is sufficiently serious to overcome the strong presumption of openness. The same is true of the risk to physical safety here. The Court of Appeal was right in the circumstances to set aside the sealing orders and I would therefore dismiss the appeal.”

Get Help

At Bader Law, we have considerable experience providing insight and legal guidance on the estate planning process, and working with Estate Trustees and beneficiaries throughout the entire probate process. We work with clients throughout Mississauga and the Greater Toronto Area on simple and highly complex estate planning and probate matters.

The Mississauga will and estate lawyers at Bader Law represent individuals, families and business owners with comprehensive estate planning needs in Mississauga and throughout the Greater Toronto Area. We advise clients on best practices in both simple and complex estate matters to ensure they have a plan in place to protect their interests and minimize their estate tax obligations. We also represent estate trustees and beneficiaries in various probate matters. Contact us online or at (289) 652-9092 to learn how we can help.