The “open court rule” is the default in Canada. That means court proceedings are presumptively open to the public. Privacy will always be at risk in open court proceedings—that includes probate and estate administration matters. Estate files can contain sensitive, private information. How is openness in court proceedings balanced against privacy interests? In Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court of Canada weighed in on the issue of public access to estate files in a very high profile case.
Billionaire philanthropists Bernard and Honey Sherman were found dead in their Toronto home in December 2017. Their deaths generated intense public interest and press scrutiny. In January 2018, the police announced that their deaths were being investigated as a double homicide. To date, the identity and motive of those responsible remain unknown. The couple’s estate trustees wanted to stem the intense press scrutiny prompted by the events. The trustees hoped to see to the orderly transfer of the couple’s property, shielded from what they saw as the public’s morbid interest in the unexplained deaths and the curiosity around the significant sums of money involved.
When the time came to obtain certificates of appointment of estate trustee, the trustees sought sealing orders so that the estate trustees and beneficiaries might be spared any further intrusions into their privacy and be protected from what was alleged to be a risk to their safety. The trustees argued that if the information in the court files was revealed to the public, the safety of the affected individuals would be at risk and their privacy compromised as long as the deaths were unexplained and those responsible remained at large. The application judge granted orders sealing the probate files.
The sealing orders were challenged by a journalist for the Toronto Star Newspaper who had written a series of articles on the couple’s deaths. The Court of Appeal unanimously allowed the appeal and lifted the sealing orders, concluding that the privacy interest advanced lacked a public interest quality, and that there was no evidence of a real risk to anyone’s physical safety. The Supreme Court of Canada agreed that in the circumstances it was right to set aside the sealing orders and dismissed the estate trustees’ appeal.
There is a strong presumption in favour of open courts. Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of Canadian democracy. As a general rule, the public can attend hearings and consult court files and the press—the eyes and ears of the public—is free to inquire and report on court proceedings, all of which helps make the justice system fair and accountable. Public scrutiny can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But that discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the press.
Notwithstanding the presumption of openness, exceptional circumstances can arise where competing interests justify a restriction on the open court principle. Proceedings in open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in an affront to a person’s dignity. Where that narrower dimension of privacy, rooted in the public interest in protecting human dignity, is shown to be at serious risk, an exception to the open court principle may be justified. Physical safety is also an important public interest that could justify an exception to the openness principle. But again, it is a high bar. Where a court order limiting openness is sought (e.g., a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order), the applicant must demonstrate that openness presents a “serious risk” to a competing interest of public importance. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:
Only where all three of these prerequisites have been met can a discretionary limit on openness properly be ordered.
On the facts, the Shermans’ trustees failed to establish a serious risk to an important public interest. Probate files reveal something about the relationship between the deceased and certain individuals, for example, who the deceased entrusted with the administration of their estate, and who they wished to be beneficiaries of their property at death. It may also reveal some basic personal information, such as addresses. That information is not highly sensitive and that alone was sufficient to conclude that there is no serious risk to the important public interest in privacy so defined. Nor was there evidence of any risk to physical safety, beyond speculation owing to the police investigating the deaths as a homicide, that was sufficiently serious to overcome the strong presumption of openness.
The estate trustees argued that probate proceedings are non-contentious or “administrative” with no public value, and thus the importance of the open court rule is not truly engaged. The unanimous Supreme Court rejected that argument. Estate files engage a public interest in openness, given that the certificates sought will have an impact on third parties, for example by establishing the testamentary paper that constitutes a valid will. Openness ensures fairness and transparency of the proceedings, whether they are contested or not.
BC probate proceedings are not quintessentially private or fundamentally administrative in nature. Matters that play out in open court necessarily reveal information that may have otherwise remained out of public view. Such intrusions on privacy must be tolerated because open courts are essential to a healthy democracy. It is only where the sensitivity of the information strikes at a person’s more intimate self that a limit on openness may be warranted. If you have questions about protecting privacy in a probate matter or need help administering an estate, contact our experienced probate and administration lawyers today.
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