Supreme Court sets aside sealing orders in Sherman Estate

In Sherman Estate v Donovan, the Supreme Court of Canada unanimously lifted sealing orders that had been placed over the estate files of Barry and Honey Sherman (the “Shermans”), reiterating the importance of the open court principle and clarifying that it is engaged by all Court proceedings, regardless of whether the matter is adversarial or administrative in nature. The Court also provided an updated test for orders which impose discretionary limitations on court openness (“Restricted Court Access Orders”), as well as guidance on how to balance the open court principle and privacy considerations.

Background

Following the violent and widely reported murders of the Shermans, the trustees for the estates brought ex parte applications seeking not only Certificates of Appointment of Estate Trustee, but also orders sealing of the court file. The trustees argued that there was no public interest that was advanced by “adding more fuel to the publicity fire” and allowing for the privacy of the victims and their surviving family members to be invaded. Additionally, the trustees also argued that a lack of details about the murders, including any information about the alleged perpetrators, created a real risk of physical harm for those associated with the estates.

The sealing orders were granted, preventing public access to the contents of the court file. A member of the media brought a motion to terminate or vary the sealing orders; the orders were varied to include a two-year expiration date.

The variation decision was appealed, and the sealing orders were unanimously lifted by the Ontario Court of Appeal (‎2019 ONCA 376‎), which found (1) that the privacy concerns alone were insufficient to justify the sealing order that had been granted; and, (2) there was insufficient evidence to support the arguments that there was a real risk of physical harm.

SCC balances privacy interests with the open court principle

On a further appeal to the Supreme Court of Canada, the Court found that the estate trustees had not established that the privacy interests were sufficiently important so as to displace the open court principle. The Court also found that the evidence of harm advanced was speculative and that a real risk of harm had not been sufficiently established.

Court proceedings are presumed to be open to the public. The open court principle furthers the important policy objective of strengthening and maintaining public confidence in the judiciary and court proceedings; it is a deeply entrenched common law tradition that is protected under the s. 2(b) Charter right to freedom of expression. While court proceedings can lead to the release of potentially embarrassing and otherwise private information, there is a strong presumption in favour of the open court principle that will only be displaced in certain circumstances.

Revised test for all discretionary limits on the open court principle

The test for a Restricted Court Access Order, such as a sealing order, has previously been articulated as a two-step process addressing both necessity and proportionality. In reviewing the jurisprudence on Restricted Court Access Orders, the Court restated the test as a three-part inquiry to “clarify the burden on an applicant seeking an exception to the open court principle” (Paragraph 38). ‎

Under the newly restated test, which applies to all discretionary limits on the open court principle (subject to operative legislation), a party seeking a Restricted Court Access Order (such as a sealing order) must establish that:‎‎

1. court openness poses a serious risk to an important ‎public interest; 
2. the order sought is necessary to prevent the serious risk ‎to the identified interest because reasonably alternative measures will not prevent the ‎risk; and, ‎
3. as a matter of proportionality, the benefits of the order ‎outweigh its negative effects.

The revised test clarifies the high standard that a party seeking a Restricted Court Access Order must meet, and “ensures that discretionary orders are subject to no lower standard than a legislative enactment limiting court openness could be" (Paragraph 40). ‎

Privacy as an interest

While recognized types of interests that would justify the exercise of discretion to impinge on the open court principle have evolved over time, any “important interest, including a commercial interest” must be inherently public in nature. Previously recognized examples include the broad commercial interest of preserving confidential information and the public interest in the protection of minors.

“The right of privacy is not absolute; the open court principle is not without exceptions” ‎(Paragraph 31). While privacy considerations can have broad importance in some circumstances given the integral nature of privacy in society, individual privacy interests alone are not sufficient without something more.

Only certain aspects of privacy have traditionally engaged the broader public interest so sufficiently that limiting the open court principle would be justified, such as the protection of the identity of minors. The Court clarified that the “preservation of the dignity of the persons involved” would also be sufficient, such as in circumstances where “information revealing core aspects of their private lives is disseminated through open court proceedings"‎ (Paragraph 73). ‎Examples of this type of information include stigmatized medical conditions, stigmatized work, sexual orientation, and subjection to sexual assault or harassment. The Court likened these types of privacy considerations as similar to those associated with the broader interest in physical safety.

In addition to the nature and character of the interest at stake, the Court also noted that the “likelihood and extent of dissemination” can be relevant factors for determining whether there is a serious risk, including the publicly available nature of the information. While there is no requirement to show that the dissemination will actually occur, the risk will be considered more serious in circumstances where it is more likely that the information will be disseminated. 

Takeaway

Addressing privacy concerns in the context of the open court principle is nuanced. In determining whether and to what extent the open court principle can be limited by privacy concerns, the key consideration will be whether the core dignity of the individual affected is at stake.  The order will be required to be proportional in the sense that it intrude on the open court principle no more than as necessary to protect the interest at stake - for example, in Sherman the interest was to avoid the publication of the court file, which the Supreme Court felt could be adequately protected by a publication ban and did not require the sealing of the court file.

While sealing orders will continue to be available and justified in conjunction with investigations and related ex parte relief, particularly where orders would be rendered ineffective if defendants were to become aware of them in advance of service, there is generally a high bar when seeking Restricted Court Access Orders. Courts are hesitant to limit public access to court files.  Parties should therefore consider whether there is true necessity in obtaining a sealing order, and whether a less intrusive order would sufficiently protect their interests before asking the Court to exercise its discretion to grant such relief.

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