Sherman Estate: (Un)sealing Probate Files At The Supreme Court Of Canada

• Published date: 22 June 2021
• Law Firm: Clark Wilson LLP
• Author: Ms Polly Storey

In October, we commented on the case of murdered Toronto billionaires, Barry and Honey Sherman, which was on appeal to the Supreme Court of Canada. Today, in Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court of Canada lifted the sealing orders that had been in place over the Shermans' estate files. This means that the public can access the Sherman Estate files at the Court registry, even though the perpetrator(s) of the crime, and their motives, if any, remain unknown.

Estate Trustees' Arguments

At issue before the Supreme Court of Canada was whether the privacy and safety concerns alleged by the Estate Trustees were made out, and if so, whether these were sufficient to override the open court principle. The Estate Trustees sought to have privacy, in and of itself, recognized as an important public interest. They also argued that there was sufficient evidence to allow the Court to infer that there was a serious risk of harm, and that court openness was less important in the circumstances of the case, namely, an "administrative" probate proceeding.

Justice Kasirer, for a unanimous Court, held that the open court principle applies with equal force to probate proceedings, and that although privacy concerns can form the basis of a sealing order, the Estate Trustees had not established that one was required in the circumstances.

Probate...