Last week, the Supreme Court of Canada issued a ruling in the widely-publicized case involving the estates of Toronto couple Barry and Honey Sherman, who were found murdered in 2017 – a crime that remains unsolved. Barry was the chairman and CEO of pharmaceutical firm Apotex Inc. and was worth an estimated US$3.2 billion at the time of his death. At issue was whether the couple’s estate documents should remain under a sealing order.
Lower Courts Divided
On June 29, 2018, a motion judge issued ex parte orders sealing two court files relating to the estates of Bernard and Honey Sherman. The targeted documents related to applications for the appointment of trustees for the couple’s estates.
One month later, the Toronto Star and one of its reporters brought a motion to terminate or vary the sealing orders. However, the motion judge dismissed the motion and preserved the sealing orders, reasoning that because the identity of the murderers and their motives remained unknown, it followed that anyone with an “interest in receiving or administering the assets” of Bernard or Honey Sherman was under a reasonable apprehension of harm from the murderers. The decision was appealed to the Ontario Court of Appeal.
In 2019, the Ontario Court of Appeal reversed the lower court decision and set aside the sealing orders. While the court found that themotion judge had correctly identified the relevant legal test for deciding whether to grant a sealing order, it held that the test had not been properly applied, stating:
“In our view, the motion judge’s analysis comes down to the proposition that because the Shermans were murdered by some unknown person or persons, for some unknown motive, individuals named as beneficiaries in their estates or as administrators of their estates are at risk of serious physical harm. With 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.”
Ultimately, the Court of Appeal ordered the unsealing of the files, holding that the privacy interest advanced lacked a public interest quality, and that there was no evidence of a real risk to anyone’s physical safety.
The decision was appealed to the Supreme Court of Canada.
Supreme Court of Canada Orders Unsealing of Files
In a unanimous decision, the Supreme Court of Canada began by explaining that there exists a strong presumption in favour of open courtswhich is a principle that is protected by the constitutionally‑entrenched right of freedom of expression and, as such, represents a central feature of a liberal democracy. The court explained that the general rule is that the public can attend hearings and consult court files and the press is free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.
However, the court also noted that certain exceptional circumstances may justify a restriction on the open court principle. The court therefore set out a test that would justify limiting the open court presumption whereby an applicant seeking a sealing order or publication ban 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.
Applying this test to the Sherman case, the court ultimately found that the alleged risks to privacy and physical safety were not sufficiently serious to overcome the strong presumption of openness. As such, it held that the Court of Appeal had been correct in setting aside the sealing orders and the appeal was dismissed.
Get Advice
Estate disputes are complicated: they involve high levels of emotion, usually by individuals who are grieving the loss of a family member or who are dealing with a loved one who is very ill. Such disputes can become quite lengthy and can take months or even years to resolve, prompting individuals to take sides, creating acrimonious divisions, and eating into the value of an estate.
At Campbells LLP, our team of compassionate and highly skilled Oakville estate litigation lawyers have been assisting clients with estate disputes and resulting litigation since 1999. We are proud of the strong, long-lasting relationships that we build with our clients and provide a steady sounding board and legal advice to guide them through what can be one of the most emotionally draining times in their lives. With our help, we can ensure that the legacy of our client’s loved ones is carried out exactly as they wished, that their health and well-being is taken care of, and that their estate is protected.
At Campbells LLP, our exceptional estate lawyers can represent you in all estate litigation matters. We know that many individuals work during the week and cannot meet during the day. One of our lawyers would be pleased to meet you in the evening or during the weekend, by appointment, if your schedule so requires. Contact us online or at (905) 828-2247. We look forward to speaking with you and going through this process by your side.
