



COURT OF APPEAL FOR ONTARIO

CITATION: Donovan v. Sherman Estate, 2019 ONCA 465

DATE: 20190605

DOCKET: M50447 (C65874)

van Rensburg J.A. (Motion
    Judge)

BETWEEN

Kevin Donovan

Applicant (Appellant/Responding Party)

and

The
    Estate of Bernard Sherman and the Trustees of the Estate, and

the Estate of Honey
    Sherman and the Trustees of the Estate

Respondents (Respondents in Appeal/Moving Parties)

Chantelle Cseh and Timothy Youdan, for the moving
    parties

Kevin Donovan, appearing in person

Heard: May 29, 2019

REASONS FOR DECISION

[1]

This is a motion for a stay of an order of this court pending the filing
    and disposition of the moving parties intended application for leave to appeal
    to the Supreme Court of Canada, and, if leave is granted, pending the final
    disposition of the appeal.

[2]

On December 15, 2017, prominent Toronto businessman and philanthropist
    Bernard Sherman and his wife, philanthropist Honey Sherman, were found murdered
    in their home. No one has yet been arrested and the crimes remain under police
    investigation.

[3]

In June 2018, counsel for the estate trustees of the estates of Bernard
    Sherman and Honey Sherman filed in the Superior Court applications for a
    certificate of appointment of estate trustee in respect of each estate. On the application
    of the estate trustees, Dunphy J. granted initial
ex parte
protective
    orders sealing the applications for a certificate of appointment of estate trustee,
    the confidentiality application materials, and other documents relating to the
    administration of the Shermans estates (the Sealed Materials).
[1]


[4]

Following a contested application to open the court files by the
    respondent, Kevin Donovan (who is Chief Investigative Reporter at the Toronto
    Star), Dunphy J. ordered on August 2, 2018 that the entire court file be sealed
     and remain sealed for a period of two years, subject to further order of the
    court.

[5]

That order was set aside on appeal to this court on May 8, 2019. This
    court ordered that its decision would take effect ten days after being
    released. Trotter J.A. made an order on consent temporarily suspending the
    effects of the May 8
th
order and providing for the continued sealing
    of the Sealed Materials pending the determination of this motion.

[6]

The motion is brought under s. 65.1 of the
Supreme Court Act
,
    R.S.C. 1985, c. S-26. Section 65.1(2) provides that such a motion may be
    brought before the serving and filing of the notice of application for leave to
    appeal, if the judge hearing the motion is satisfied that the party seeking the
    stay intends to apply for leave to appeal and that delay would result in a
    miscarriage of justice.

[7]

The moving parties have 60 days from May 8
th
to apply to the
    Supreme Court for leave to appeal. It was essential that they move quickly for
    a stay, before they had served and filed their notice of application for leave
    to appeal, as this courts order allowing the appeal provided for the Sealed
    Documents to be unsealed within ten days. There is no question that the moving
    parties intend to apply for leave to appeal, and they have clearly articulated
    the grounds they propose to argue in their application to the Supreme Court. I
    am satisfied that they have met the test under s. 65.1(2).

[8]

The test on a motion for a stay of an order of this court pending an application
    for leave to appeal to the Supreme Court of Canada, was set out by Strathy
    C.J.O. in
Livent Inc. v. Deloitte & Touche
, 2016 ONCA 395, 131
    O.R. (3d) 784 (in Chambers), at paras. 4-5. The factors to be considered are:
    (1) whether there is a serious question to be determined; (2) whether the
    moving party will suffer irreparable harm if the stay is not granted; and (3)
    whether the balance of convenience favours a stay. The factors are not to be
    treated as watertight compartments and the strength of one factor may
    compensate for weaknesses of another. The overarching consideration is whether
    the interests of justice call for a stay. See also
BTR Global Opportunity Trading
    Limited v. RBC Dexia Investor Services Trust
, 2011 ONCA 620, 283 O.A.C.
    321 (in Chambers), at para. 16.

(1)

Serious Question to be Determined

[9]

With respect to the first factor, whether there is a serious issue to be
    determined requires a preliminary assessment of the merits of the proposed
    appeal, as well as the merits of the proposed leave application. The assessment
    at this stage is described as a low threshold:
Livent Inc.
, at
    paras. 7-8.

[10]

In
    considering whether the appeal would raise a serious issue, I note that this
    court and the application judge differed in their conclusions as to whether the
    first part of the
Sierra Club
test (
Sierra Club of Canada v.
    Canada (Minister of Finance)
, 2002 SCC 41, [2002] 2 S.C.R. 522) was met.
    The application judge concluded on the evidence filed that the first part of
    the test was met  that the sealing order was necessary to prevent a serious
    risk to the privacy and safety of the trustees and beneficiaries of the two
    estates. He then applied the second part of the test to conclude that the
    salutary effects of the order sought outweighed its deleterious effects,
    including the effects on the right to free expression and the public interest
    in open and accessible court proceedings.

[11]

On
    appeal, this court concluded that the privacy interests were not properly
    considered at the first stage of the
Sierra Club
test and that it was
    not an inference from the evidence, but speculation, that the disclosure of the
    contents of the estate files posed a real risk of serious physical harm to the
    beneficiaries and trustees.

[12]

In
Baier v. Alberta
, 2006 SCC 38, [2006] 2 S.C.R. 311 (in Chambers),
    Rothstein J. noted that the extensive reasons of two levels of court, which
    came to different conclusions, made it apparent that there was a serious issue:
    at para. 16(a). Similarly in this case, a review of the reasons of the
    application judge and this court makes it clear that the central issue in
    dispute between the parties  whether public access to certain estate files
    should be denied, in whole or in part, for some period of time  raises a
    serious question.

[13]

The
    real issue on this part of the test is whether there is any arguable merit to
    the proposed application for leave to appeal. Leave to appeal is granted
    sparingly in civil matters, and must meet the test under s. 40(1) of the
Supreme
    Court Act
. The question is whether or not it is likely that the Supreme
    Court would grant leave. Typically, leave is granted under s. 40(1) of the
Supreme
    Court Act
only where the proposed appeal raises an issue of public or
    national importance.

[14]

The
    issues the moving parties intend to raise in their application for leave to
    appeal to the Supreme Court are identified and explained at some length in
    their factum on the stay motion, at paras. 36 to 51. Essentially, the proposed
    appeal would raise questions about (1) the appropriate analytical framework for
    an order restricting public access to court files involving non-litigious or
    administrative matters  something the Supreme Court has not yet determined;
    (2) whether, in the digital age, and having regard to the evolving
    jurisprudence concerning personal privacy, a persons privacy interests can
    amount to an important public interest at the first stage of the
Sierra
    Club
test; and (3) whether this court departed from relevant Supreme Court
    jurisprudence in concluding that the risk of harm was speculative and in
    failing to consider objectively discernable harm.

[15]

Mr.
    Donovan argues that there is no serious issue in this case because the law is
    settled. The proposed appeal involves a dispute about the application of the
    test for sealing orders, which has been consistently stated by the Supreme
    Court over the past 30 years. Mr. Donovan asserts that this court simply
    concluded, in its decision on the appeal, that the evidence was not sufficient
    to show a real, as opposed to a speculative, risk of serious harm to a public interest.
    He contends that the failure of the moving parties to move to file fresh
    evidence before this court undercuts their argument that there is a risk to personal
    safety if the court file is not sealed, and that the real concern here is
    personal privacy, which this court determined was not an important public
    interest to protect at the first stage of the
Sierra Club
test
.

[16]

I
    am satisfied that the low threshold of the first part of the test for a stay is
    met. The moving parties proposed application for leave to appeal to the
    Supreme Court has some arguable merit. Although the application arises in the
    context of a civil matter, the foundation of the dispute engages important
    public interests, and the issues the moving parties seek to raise on a further appeal
    go beyond the simple application of a known test to given facts and would
    transcend the facts of this particular case. The first part of the test
    therefore favours the order sought by the moving parties.

(2)

Irreparable Harm

[17]

Here
    the moving parties say that if the order requested is refused, they will be
    irreparably harmed because the intended application for leave to appeal, and,
    if leave is granted, the appeal itself, will be rendered moot.

[18]

Mr.
    Donovan argues that there will be no irreparable harm because this court has
    already determined that any harm that could result from the lifting of the
    sealing order is purely speculative. Mr. Donovans focus is on the harm to an
    important public interest required under the first part of the
Sierra Club
test.

[19]

Irreparable
    harm for the purpose of a stay motion is generally harm which either cannot be
    quantified in monetary terms or which cannot be cured:
Livent Inc.
, at
    para. 10, citing
RJR-MacDonald Inc. v. Canada (Attorney General)
,
    [1994] 1 S.C.R. 311, at p. 341. The focus here is on the harm that would result
    to the moving parties if the order in question were not stayed pending their application
    for leave to appeal.

[20]

I
    am satisfied that the moving parties would suffer irreparable harm if they were
    denied a stay, because their proposed application for leave to appeal, which I
    have concluded has arguable merit, would become moot. In
Provincial Court
    Judges Association of British Columbia v. British Columbia (Attorney General)
, 2018 BCCA 477, 430 D.L.R. (4th) 670 (in Chambers)
,
    the contested production of a Cabinet document was at issue. Bennett J.A.
    granted a stay of the B.C. Court of Appeals order for production of the
    document, pending an application for leave to appeal to the Supreme Court. She
    accepted that, if the stay were refused, the proposed appeal would be rendered
    moot, which would irreparably harm the moving party by disseminating
    potentially constitutionally-protected confidential information that might, at
    the end of the process, continue to be protected. In other words, the horse
    will be out of the barn: at para. 43.

[21]

The
    same reasoning applies to this case. Refusal of a stay of this courts order would
    mean that the Sealed Materials would form part of the public record, resulting
    in the release of information that, if the appeal process were to run its
    course, might be protected.

(3)

Balance of Convenience

[22]

There
    is no affidavit evidence from the respondent addressing the harm that will
    arise if the stay is granted. Mr. Donovan relies on the delay that has already
    transpired since he first sought access to the estate files in July 2018, and
    that will continue while the moving parties seek leave to appeal to the Supreme
    Court. The delay is in having access to information about the administration of
    the Sherman estates. The moving parties assert that there is no particular
    urgency for public access to the contents of the court file.

[23]

I
    am satisfied that the delay that Mr. Donovan and other members of the public
    would experience in obtaining access to the Sealed Documents before the application
    for leave to appeal is determined is outweighed by the irreparable harm that
    would follow if a stay were refused. The order sought has the effect of
    preserving the
status quo
during the relatively short period of time
    required for the determination of the moving parties application for leave to
    appeal to the Supreme Court. If leave is refused, then the order of this court
    reversing the sealing order will take effect at that time  likely within a
    matter of a few months. If leave is granted, it will be up to the Supreme Court
    to determine whether the Sealed Materials will continue to be sealed pending
    disposition of the appeal.

[24]

Finally,
    Mr. Donovan argues that, rather than staying the entire order of this court, I
    should redact the information that is truly confidential, and permit the
    balance of the court file to be opened to the public.

[25]

I
    am not prepared to do so. Dunphy J., in granting the confidentiality order, and
    after reviewing the two estate files with an eye to determining whether there
    were parts that could be disclosed without revealing the names, addresses or
    bequests left to beneficiaries of either estate or the names and addresses of
    the trustees, concluded that there was simply no meaningful part of either
    file that could be disclosed after making the number of redactions necessary to
    satisfy those conditions. In the appeal to this court, it was unnecessary to
    consider any possible redactions. What Mr. Donovan is asking, in effect, is
    that I put myself in the role of the judge of first instance, to review the
    Sealed Documents and to come to a different conclusion than he did. That is not
    something I am prepared to do. It is not appropriate, on this motion for a
    stay, to essentially make a fresh determination of the original merits of the
    application.

[26]

It
    is in the interests of justice to grant the motion for a stay. The order of
    this court dated May 8, 2019 therefore is stayed pending the filing and
    determination of the moving parties application for leave to appeal to the
    Supreme Court of Canada and the sealed materials shall accordingly remain
    sealed during this period. In accordance with their undertaking to the court,
    the moving parties shall serve and file their application for leave to appeal
    to the Supreme Court of Canada on or before June 21, 2019, and shall request
    that the motion, and, should leave be granted, any appeal to that court, be
    expedited.

[27]

No
    costs are sought or awarded.

K. van Rensburg
    J.A.





[1]

I am told by counsel for the moving parties that the Sealed
    Materials include everything that has been and continues to be filed in the
    Superior Court concerning the administration of the two estates. They also
    confirm Mr. Donovans expectation that the entire court file, including all
    documents filed after Dunphy J.s order was made, will become public when any
    stay of this courts order expires.


