Sherman Estate v. Donovan

Summary

A journalist and the Toronto Star challenged sealing orders over the probate files of a prominent couple whose unexplained deaths were being investigated as homicides. The Supreme Court restated the three-part test for discretionary limits on court openness and recognized privacy, understood as dignity, as an important public interest. It found no serious risk to privacy or physical safety and dismissed the trustees' appeal.

Outcome

Appeal dismissed (Kasirer J., unanimous, 7 justices). The Court of Appeal's order setting aside the sealing orders stands. The trustees did not show a serious risk to an important public interest: the probate information was not sufficiently sensitive to strike at the biographical core, and the physical-safety risk rested on speculation. The Toronto Star's new-evidence motion was dismissed as moot. No costs (the Star sought none). Before the Court: Dunphy J. (2018 ONSC 4706) sealed the files for two years, renewable; Court of Appeal (2019 ONCA 376) lifted the orders. Neither lower decision was independently reviewed beyond the Supreme Court's account.

Why this case matters

The Supreme Court restated a three-part test for sealing orders, publication bans and similar limits on court openness, and recognized privacy as dignity as an important public interest only where the risk is serious.

Paragraph references

Paras 1-8: overview and holding. Paras 30-31, 37-45: open court principle, presumption of openness, probate is not exempt (44-45). Para 38: three prerequisites (serious risk to an important public interest; necessity because reasonable alternatives will not prevent the risk; proportionality) applying to all discretionary limits, subject to valid legislation. Paras 41-43: scope of important public interest, no closed list; serious risk is a separate, fact-based finding. Paras 46-55, 56-63: privacy generally is not an important public interest; mere embarrassment or discomfort is insufficient (2, 63, 84); rejection of the Court of Appeal "personal concerns" framing (47-48, disagreeing with H. (M.E.) v. Williams, 2012 ONCA 35). Paras 64-77, 85: privacy as dignity; biographical core; examples of sensitive information (55, 77). Paras 79-84: seriousness of risk: extent of dissemination, online context and practical obscurity, information already public, probability. Para 92: minors do not displace the analysis. Paras 96-103: physical safety, inference versus speculation, gravity and probability, bare assertion insufficient. Para 105: a publication ban would likely have been a sufficient, less restrictive alternative to sealing. Para 106: proportionality, central versus peripheral information. Paras 107-108: disposition.