Supreme Court Affirms Open Court Rules Apply to Probate Process
Ruling Clarifies the Limited Circumstances Under Which the Principle of Transparency May Be Overridden
Sherman Estate v. Donovan
In late 2017, the very wealthy couple Barry and Honey Sherman were found dead in their Toronto home. Although there has not yet been any conclusion to the police investigation of their deaths, it is widely believed that they were murdered. The culprit[s] and their motivations remain unknown.
When the Shermans’ estate trustees applied for certificates of appointment, they also sought sealing orders. They argued that, without sealing orders, they and the beneficiaries would be exposed to media coverage in connection with the Shermans’ mysterious deaths, which would compromise both their privacy and their safety.
The Superior Court of Justice granted the sealing orders, which were then challenged by the Toronto Star. The Toronto Star argued that the orders were inconsistent with the open court principle, and violated its rights to freedom of expression and of the press. The Court of Appeal reversed the application judge’s decision, and lifted the orders. The estate trustees appealed to the Supreme Court of Canada.
At the SCC, a panel of seven justices unanimously dismissed the estate trustees’ appeal, and upheld the Court of Appeal’s decision to lift the sealing orders. The decision, written by Justice Kasirer, explores the difficult balance that the court system must strike between transparency in its own proceedings and protection of the privacy of the people involved.
Probate and the Open Court Principle
One thing that testators, estate trustees, and beneficiaries can find unsettling about the probate process is that, being a court process, it is a matter of public record. Information on the testator’s assets, and on the identities of the beneficiaries, therefore becomes publicly available. Although it is unusual for an estate to draw the amount of public attention that the Shermans’ has, the public is able to find information about any probated estate. This is one of the reasons that some testators use other methods, such as multiple wills or jointly-held assets, to pass on their estates while keeping some or all of their information private.
One argument that the Shermans’ estate trustees advanced in support of the sealing orders was that probate is merely an administrative matter, and engages very little public interest. The SCC rejected this argument for two reasons.1 First, the court found that the open court principle applies broadly to all court proceedings, as all of them carry the authority of the court, and with it the importance of “discouraging mischief and ensuring confidence in the administration of justice through transparency”. Second, the court rejected the idea that probate proceedings are “inherently private,” noting that a decision on the validity of a will, even if it is not contested, can affect the rights of third parties.
In other words, the court generally must be transparent whenever it acts, and must recognize that its decisions can affect more than just the parties to the application, even in a straightforward probate application.
The Sierra Club Test
Although it attaches great importance to the open court principle, the court has recognized that there are some situations in which this principle should be limited. The test for a limit on court openness was developed in Sierra Club of Canada v Canada (Minister of Finance).2 An applicant who seeks a limit must prove that:
court openness poses a serious risk to an important public interest;
the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and
as a matter of proportionality, the benefits of the order outweigh its negative effects.3
The first stage of the test is essentially two analytical steps squeezed together. A party must both identify a specific public interest that is affected by court openness in the case at hand, and demonstrate that this interest faces a “serious,” and not merely speculative, risk. The Shermans’ estate trustees argued that they had identified two such important public interests: privacy and protection against the risk of physical harm.
Privacy and Risk of Physical Harm
The court agreed that individual privacy is an important public interest, but noted that private information is frequently made public in all manner of court proceedings. Many proceedings ask the courts to make public judgements on otherwise private affairs, and the open court principle necessarily comes at some cost to the privacy of individual parties.
The SCC was concerned that if it broadly recognized an important public interest in privacy that is seriously threatened by open court proceedings, it could effectively eliminate the first step in the Sierra Club test, because a risk to privacy can exist in any open proceeding.4 The court was not willing to take this step, as it took the view that the first stage of the test helps to protect the presumption of openness by narrowing the range of cases in which a limit can be considered. In other words, a decision that could lead to a serious risk being easily found in nearly any case would inappropriately weaken the entire test.
The SCC also expressed concern that, if the first stage of the Sierra Club test were weakened and more cases came to be decided based on the weighing of benefits and harms, it would be difficult for courts to evaluate these factors in a way that gives the presumption of openness the strong protection that it needs. The reason for this concern is that the harms to a person’s privacy that can come from a court proceeding are often immediately obvious, while the harms to a democratic society that can come from a less open court system are more subtle and long-term. In the SCC’s view, the open court principle might be too easily compromised over time if a broad range of cases were to reach the weighing stage in the test.5
Instead, the court recognized a public interest in privacy only as it relates to sensitive personal information, the disclosure of which would threaten a person’s dignity. Referring to criminal law precedents related to search and seizure, the court explained that this public interest applies only to information that consists of “intimate or personal details about an individual,” and “cuts to the ‘biographical core’”.6 Examples of such information include “stigmatized medical conditions,” “stigmatized work,” “sexual orientation,” and “subjection to sexual assault or harassment”.7
In the case at hand, the court found that media coverage of the probate process would not reveal any “particularly private” information (para 91) that would strike at any person’s biographical core. On the issue of physical safety, the court found that there were no clear facts to support a fear that any person would be in danger. There was only speculation arising from the unknown identity and motives of the Shermans’ killer[s].
Because the estate trustees failed to prove a serious risk to an important public interest, they were not able to pass the first step in the Sierra Club test, and the court did not restore the sealing orders. The court noted that they would also have been unlikely to succeed at the second stage of the test, because a publication ban would probably have given the relief that they wanted without the need for sealing orders.
The court will protect a strong presumption of court openness in all proceedings, including the probate process. This presumption is not defeated by the basic privacy interests of estate trustees and beneficiaries. Any exceptions will be rare, and are only likely to arise in response to specific fact situations where a person’s dignity or safety is at risk for some clear reason.
1Sherman Estate v. Donovan, 2021 SCC 25 (“Sherman Estate”) at para 44.
2 2002 SCC 41.
3 Sherman Estate at para 38.
4 Sherman Estate at para 59.
5 Sherman Estate at para 43.
6 Sherman Estate at para 75.
7 Sherman Estate at para 77.