



COURT OF APPEAL FOR ONTARIO

CITATION: Donovan v. Sherman Estate, 2019 ONCA 376

DATE: 20190508

DOCKET: C65874

Doherty, Rouleau and Hourigan JJ.A.

BETWEEN

Kevin Donovan

Applicant (Appellant)

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)

Kevin Donovan, appearing in person

Timothy Youdan and Chantelle Cseh, for the respondents

Heard: April 29, 2019

On appeal from the order of Justice S. F. Dunphy of the
    Superior Court of Justice, dated August 2, 2018, with reasons reported at 2018
    ONSC 4706.

REASONS FOR DECISION

[1]

On June 29, 2018, the motion judge made
ex parte
orders sealing
    certain court files relating to the Estates of Bernard and Honey Sherman. In
    July 2018, the Toronto Star Newspapers Ltd. (Toronto Star) and one of its
    reporters, Kevin Donovan, brought a motion to terminate or vary the sealing
    orders. After hearing argument, the motion judge, with minor non-contentious
    exceptions, dismissed the motion and preserved the sealing orders. The motion
    judge did, however, provide that the sealing orders would expire in two years. His
    order, dated August 2, 2018, is appealed to this court.

[2]

Both the Toronto Star and Mr. Donovan were appellants. However, on
    consent, the Toronto Star has been removed from the proceedings.

[3]

Mr. and Mrs. Sherman were murdered in their home on or about December
    15, 2017. Both were prominent Toronto residents.

[4]

The court files that have been ordered sealed relate to applications
    brought for the appointment of estate trustees in respect of the estates of
    both Bernard and Honey Sherman. The motion materials in support of the sealing
    orders are also covered by the sealing orders. But for the sealing orders, all
    of the material would be available for public perusal under the open court
    principle.

[5]

As the motion judge acknowledged, sealing orders and other kinds of
    orders that restrict public access to the court and court proceedings are very
    much the exception. The party seeking a sealing order carries the burden of
    demonstrating the need for the order:
R. v. Mentuck
, [2001] 3 S.C.R.
    442, at para. 38. A judge considering an
ex parte
motion for a sealing
    order must subject the supporting material to careful scrutiny, recognizing
    both the fundamental rights at issue and the disadvantage inherent in an
ex
    parte
proceeding.

[6]

The motion judge correctly identified the test to be applied when deciding
    whether to grant a sealing order: Reasons, para. 13(d). That test has two
    parts. First, the party seeking the order must show that the order is necessary
    to prevent a serious risk to an important public interest which cannot be
    protected by other reasonable alternative methods. Second, the party seeking
    the order must establish that the salutary effects of the sealing order
    outweigh its deleterious effects, including the negative effects on the right
    to freedom of expression and other public interests served by open and
    accessible court proceedings:
Atomic Energy of Canada v. Sierra Club of
    Canada
, [2002] 2 S.C.R. 522, at para. 53.

[7]

If the party seeking the order cannot show the requisite necessity required
    of the first stage of the inquiry, a sealing order cannot be granted and there
    is no need to move on to the balancing or proportionality component of the
    test. When determining whether the moving party has shown that the sealing
    order is necessary, the nature and significance of the public interest in
    access to the material is irrelevant:
H. (M.E.) v. Williams
, 2012 ONCA
    35, at paras. 31-32.

[8]

The motion judge pointed to two concerns which satisfied him that
    sealing orders were necessary. First, he referred to the need to protect the
    privacy and dignity of the victims of violent crime and their loved ones.
    Second, he referred to the reasonable apprehension of risk to those who have an
    interest in receiving or administering the assets of the deceased: Reasons,
    paras. 22-24.

[9]

In his submissions to this court, counsel for the respondents relied on
    both factors identified by the motion judge, but argued that the risk of
    physical harm to certain individuals was the primary justification for the sealing
    orders.

[10]

Members
    of the Sherman family and people closely associated with the Shermans
    understandably want to keep family and estate-related matters private. It is
    equally understandable that, having gone through the horrors of a sudden and
    violent death of loved ones, they want to grieve in private outside of the
    public spotlight. However, the kind of interest that is properly protected by a
    sealing order must have a public interest component. Personal concerns cannot,
    without more, justify an order sealing material that would normally be available
    to the public under the open court principle:
Sierra Club v. Canada
,
    at para. 55;
H. (M.E.) v. Williams
, at para. 25.

[11]

Considering
    the motion judges reasons as a whole, we are satisfied that he did treat the privacy
    and dignity of the victims and their loved ones as an important interest,
    warranting the protection of a sealing order: reasons, para. 22. Those concerns
    have relevance on a sealing motion only if the second stage of the inquiry is
    reached and the court is called upon to balance the salutary effects of the
    sealing order against its deleterious effects.

[12]

The
    second interest identified by the motion judge, the personal safety of
    individuals or an identifiable group of individuals, is no doubt an important public
    interest that can, in an appropriate case, warrant a sealing order. The evidence
    offered in support of the order must, however, justify a finding of a real
    risk.

[13]

The
    evidence put forward by the respondents on the motions consisted of a single
    13-paragraph affidavit that addressed the potential risk to persons identified
    in the estate files in a single paragraph. That paragraph contained conclusory assertions
    rather than statements of fact. In our view, there was no evidence that could
    warrant a finding that disclosure of the content of the estate files posed a
    real risk to anyones personal safety.

[14]

The
    motion judge reasoned that because the identity of the murderers was unknown
    and their motive, if any, unknown, it followed that anyone with an interest in
    receiving or administering the assets of Bernard or Honey Sherman was under a
    reasonable apprehension of harm from the murderers. The motion judge put it
    this way, at para. 24:

The necessary inferences can be drawn from the known facts and
    the unknown ones. The willingness of the perpetrator(s) of the crimes to resort
    to extreme violence to pursue whatever motive existed has been amply
    demonstrated. The risk of harm is foreseeable and the foreseeable harm is
    grave. I have no difficulty in concluding that the current uncertainty gives
    rise to a reasonable apprehension of risk on behalf of those known to have an
    interest in receiving or administering the assets of the deceased.

[15]

Nothing
    in the material filed on the motion to seal the files permits any informed
    assessment of what motive, if any, there appeared to be for the murders. Nor
    was there any evidence that would allow the motion judge to infer that the
    motive was unknown. There was no suggestion in the material that the affiant
    knew anything about the state of the police investigation or any other
    investigation that may be underway in respect of the murders.

[16]

In
    our view, the motion judges analysis comes down to the proposition that
    because the Shermans were murdered by some unknown person or persons, for some
    unknown motive, individuals named as beneficiaries in their estates or as
    administrators of their estates are at risk of serious physical harm. With
    respect, the suggestion that the beneficiaries and trustees are somehow at risk
    because the Shermans were murdered is not an inference, but is speculation. It
    provides no basis for a sealing order.

[17]

For
    the reasons set out above, we are satisfied that the sealing orders must be set
    aside. Counsel for the respondents asked for the opportunity to make further
    submissions in respect of possible redactions from the files, were we to hold
    that the sealing orders should be set aside. We have considered that request
    but since, in our view, the application fails at the necessity stage of the
    analysis, there can be no basis for any redactions.

[18]

The
    order of Dunphy J., dated August 2, 2018, is set aside. This courts order will
    take effect 10 days after the release of these reasons. No costs.

Doherty J.A.

Paul Rouleau J.A.

C.W. Hourigan J.A.


