Court of Appeal for Ontario

Date: 2019-05-08 Docket: C65874 Panel: Doherty, Rouleau and Hourigan JJ.A.

Between

Kevin Donovan Applicant (Appellant)

and

The Estate of Bernard Sherman and the Trustees of the Estate and the Estate of Honey Sherman and the Trustees of the Estate Respondents (Respondents in Appeal)

Counsel

Kevin Donovan, appearing in person

Timothy Youdan and Chantelle Cseh, for the respondents

Heard: April 29, 2019

Appeal

On appeal from the order of Justice S. F. Dunphy of the Superior Court of Justice, dated August 2, 2018, with reasons reported at 2018 ONSC 4706.

Reasons for Decision

[1] On June 29, 2018, the motion judge made ex parte orders sealing certain court files relating to the Estates of Bernard and Honey Sherman. In July 2018, the Toronto Star Newspapers Ltd. ("Toronto Star") and one of its reporters, Kevin Donovan, brought a motion to terminate or vary the sealing orders. After hearing argument, the motion judge, with minor non-contentious exceptions, dismissed the motion and preserved the sealing orders. The motion judge did, however, provide that the sealing orders would expire in two years. His order, dated August 2, 2018, is appealed to this court.

[2] Both the Toronto Star and Mr. Donovan were appellants. However, on consent, the Toronto Star has been removed from the proceedings.

[3] Mr. and Mrs. Sherman were murdered in their home on or about December 15, 2017. Both were prominent Toronto residents.

[4] The court files that have been ordered sealed relate to applications brought for the appointment of estate trustees in respect of the estates of both Bernard and Honey Sherman. The motion materials in support of the sealing orders are also covered by the sealing orders. But for the sealing orders, all of the material would be available for public perusal under the open court principle.

[5] As the motion judge acknowledged, sealing orders and other kinds of orders that restrict public access to the court and court proceedings are very much the exception. The party seeking a sealing order carries the burden of demonstrating the need for the order: R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 38. A judge considering an ex parte motion for a sealing order must subject the supporting material to careful scrutiny, recognizing both the fundamental rights at issue and the disadvantage inherent in an ex parte proceeding.

[6] The motion judge correctly identified the test to be applied when deciding whether to grant a sealing order: Reasons, para. 13(d). That test has two parts. First, 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. Second, 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 SCC 41, [2002] 2 S.C.R. 522, at para. 53.

[7] If the party seeking the order cannot show the requisite necessity required of the first stage of the inquiry, a sealing order cannot be granted and there is no need to move on to the balancing or proportionality component of the test. When determining whether the moving party has shown that the sealing order is necessary, the nature and significance of the public interest in access to the material is irrelevant: H. (M.E.) v. Williams, 2012 ONCA 35, at paras. 31-32.

[8] The motion judge pointed to two concerns which satisfied him that sealing orders were necessary. First, he referred to the need to protect the privacy and dignity of the victims of violent crime and their loved ones. Second, he referred to the reasonable apprehension of risk to those who have an interest in receiving or administering the assets of the deceased: Reasons, paras. 22-24.

[9] In his submissions to this court, counsel for the respondents relied on both factors identified by the motion judge, but argued that the risk of physical harm to certain individuals was the primary justification for the sealing orders.

[10] Members of the Sherman family and people closely associated with the Shermans understandably want to keep family and estate-related matters private. It is equally understandable that, having gone through the horrors of a sudden and violent death of loved ones, they want to grieve in private outside of the public spotlight. However, the kind of interest that is properly protected by a sealing order must have a public interest component. Personal concerns cannot, without more, justify an order sealing material that would normally be available to the public under the open court principle: Sierra Club v. Canada, at para. 55; H. (M.E.) v. Williams, at para. 25.

[11] Considering the motion judge's reasons as a whole, we are satisfied that he did treat the privacy and dignity of the victims and their loved ones as an important interest, warranting the protection of a sealing order: reasons, para. 22. Those concerns have relevance on a sealing motion only if the second stage of the inquiry is reached and the court is called upon to balance the salutary effects of the sealing order against its deleterious effects.

[12] The second interest identified by the motion judge, the personal safety of individuals or an identifiable group of individuals, is no doubt an important public interest that can, in an appropriate case, warrant a sealing order. The evidence offered in support of the order must, however, justify a finding of a real risk.

[13] The evidence put forward by the respondents on the motions consisted of a single 13-paragraph affidavit that addressed the potential risk to persons identified in the estate files in a single paragraph. That paragraph contained conclusory assertions rather than statements of fact. In our view, there was no evidence that could warrant a finding that disclosure of the content of the estate files posed a real risk to anyone's personal safety.

[14] The motion judge reasoned that because the identity of the murderers was unknown and their motive, if any, 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 motion judge put it this way, at para. 24:

The necessary inferences can be drawn from the known facts and the unknown ones. The willingness of the perpetrator(s) of the crimes to resort to extreme violence to pursue whatever motive existed has been amply demonstrated. The risk of harm is foreseeable and the foreseeable harm is grave. I have no difficulty in concluding that the current uncertainty gives rise to a reasonable apprehension of risk on behalf of those known to have an interest in receiving or administering the assets of the deceased.

[15] Nothing in the material filed on the motion to seal the files permits any informed assessment of what motive, if any, there appeared to be for the murders. Nor was there any evidence that would allow the motion judge to infer that the motive was unknown. There was no suggestion in the material that the affiant knew anything about the state of the police investigation or any other investigation that may be underway in respect of the murders.

[16] 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.

[17] For the reasons set out above, we are satisfied that the sealing orders must be set aside. Counsel for the respondents asked for the opportunity to make further submissions in respect of possible redactions from the files, were we to hold that the sealing orders should be set aside. We have considered that request but since, in our view, the application fails at the "necessity" stage of the analysis, there can be no basis for any redactions.

[18] The order of Dunphy J., dated August 2, 2018, is set aside. This court's order will take effect 10 days after the release of these reasons. No costs.

Doherty J.A.

Paul Rouleau J.A.

C.W. Hourigan J.A.