The Sherman Estates And Privacy As A Public Interest

• Published date: 19 August 2021
• Subject Matter: Family and Matrimonial, Privacy, Data Protection, Privacy Protection, Wills/ Intestacy/ Estate Planning
• Law Firm: Rogers Partners LLP
• Author: Mr Tom Macmillan

The Supreme Court of Canada recently released its decision in Sherman Estate v Donovan, 2021 SCC 25, on the question of whether to grant a request from the estates' trustees to seal documentation relating to the will probate process.

There is little doubt that public interest in the decision relates more to the high-profile nature of the underlying deaths of Honey and Barry Sherman, than to interest in the courts' position on sealing orders. That being said, despite the technical and narrow issue considered, the ruling provides interesting insight into the Supreme Court's attitude toward privacy as a public interest in its own right, which is worthy of protection in certain circumstances.

Background

The deaths of the Shermans became a national fixation for a period of time, owing in part to the wealth and profile of the couple, and in part to the fact that their deaths were deemed suspicious by the authorities. The trustees of the estates sought a sealing order as part of the probate process, asking that the names and contact information for the individuals named in the wills be kept from the public.

The argument in support of the sealing order was that, if the documentation became public, the individuals named in the wills would a) be subject to intense media focus due to the public fascination with the Sherman story; and b) have their lives put in danger, presumably from the same unknown individuals potentially responsible for the deaths of Honey and Barry Sherman.

The Decisions

The Ontario Superior Court of Justice granted the sealing order. The decision was appealed to the Court of Appeal by a journalist. That appeal was successful in overturning the sealing order, setting the stage for the recent ruling from the Supreme Court.

The Supreme Court ruled unanimously to deny the appeal, meaning that the Court of Appeal's striking of the sealing order stands, and the probate documentation can be seen by the public.

Balancing Public Interests

At issue in this case, and indeed in any instance where a sealing order is considered, is the principle of open court proceedings. Put briefly, there is a strong public interest in ensuring that court processes and disputes are public. The open and public nature of all manner of court proceedings is integral for ensuring the public's trust in the justice system, as the public must be permitted to observe justice being done in order to be satisfied that it is indeed being done.

The issue of court openness has been...