The Litigator

THE LITIGATOR

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The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
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Open Courts Principle Trumps Speculative Concerns Over Physical Harm

In the case of Donovan v. The Estate of Bernard Sherman et al., Ontario’s Court of Appeal held that the principle that court records must be accessible to the public trumped speculative concerns of physical harm to the trustees and beneficiaries of an estate if disclosure of the details of that estate was made.

The Appellant, Kevin Donovan, is a reporter for the Toronto Star. He sought to set aside a sealing order of court files relating to the Estates of Bernard and Honey Sherman, who were prominent Toronto residents that were killed in their home on December 17, 2017. The sealed court files related to applications brought for the appointment of their estate trustees.

Sealing Orders in Canada

But for sealing orders, all materials in a court file are usually available for public perusal under the open court principle, which has been described as “the very soul of justice”, guaranteeing that justice is administered in a non-arbitrary manner (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 22).

The test to be applied when deciding whether to grant a sealing order has two parts:

  1. The party seeking the order must show that the order is necessary to prevent a serious risk to an important public interest which cannot be protected by other reasonable alternative methods; and
  2. The party seeking the order must establish 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 (Atomic Energy of Canada v. Sierra Club of Canada, [2002] 2
    S.C.R. 522, at para. 53).

If the first part of the test is not made out, then there is no need to proceed to the second part of the test dealing with balancing and proportionality.

The Appeal

The motions judge held that sealing orders were necessary in this case on the basis that there was a need to protect the privacy and dignity of the victims of violent crime and their loved ones. The motions judge also referred to the reasonable apprehension of risk to those who had an interest in receiving or administering the assets of the deceased. On appeal, this risk was maintained as the primary basis for seeking to maintain the sealing orders by the respondents.

The Court of Appeal disagreed that these two bases were properly part of the first part of the test for sealing orders. The need to protect the privacy and dignity of the victims of violent crimes and their loved ones was properly part of the second branch of the test. It may well have been that the benefits to them would have outweighed the negative effects on the open court principle. However, to get that far in the analysis, the Court of Appeal stressed that there needed to be evidence that a sealing order was necessary to prevent a serious risk to an important public interest as opposed to a private one otherwise, there would be no balancing analysis under the second part of the test.

The personal safety of individuals or an identifiable group of individuals was identified by the Court of Appeal as an important public interest that could, in an appropriate case, warrant a sealing order. To do so required evidence to justify the finding of a real risk of harm. In this case, there was one paragraph in the motion materials dealing with the potential risk to persons identified in estate files that seemed to draw a conclusion rather than provide facts that could support an argument that there was a real risk of harm. On this lack of actual evidence harm, the Court of Appeal disagreed that it was open to the motions judge to draw an inference that because the identity of the murders of the Shermans was unknown, it followed that anyone who stood to benefit from their estates was at risk of physical harm. The Court held, “[w]ith respect, the suggestion that the beneficiaries and trustees are somehow at risk because the Shermans were murdered is not an inference, but is speculation. It provides no basis for a sealing order.”

The Court of Appeal set aside the sealing orders. According to press reports, an application for leave to appeal to the Supreme Court of Canada is being made.

Michael Binetti
Affleck Greene McMurtry LLP

Michael Binetti

Michael Binetti, a partner of the firm, brings a proven litigation background plus extensive experience in arguing both trials and appeals. He has demonstrated his strategic legal capability and expertise in wide-ranging areas of litigation. Michael’s peers and clients have commented that Michael is an “excellent and creative lawyer,” “finds unique solutions to complex problems,” and that “Michael gets it and knows how to win.”

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