Kevin Donovan is the Chief Investigator Reporter at the
Toronto Star. He also is the author of a
book about the unsolved murders of Toronto billionaire Barry Sherman and his
wife Honey Sherman entitled “The Billionaire Murders: The
Mysterious Deaths of Barry and Honey Sherman”. In the book, as reviewed
by Jeff Gray of The Globe and Mail, Donovan sets out to determine what actually
happened to the Shermans and who their killer might be. He explains that
on occasion, he even acted as The Toronto Star’s lawyer – even though he has no
legal training and is not a lawyer – and has attended at court to question
police to unseal such things as search warrant documents.
The Shermans were
murdered in their home on December 15, 2017.
No one has yet been arrested and the police are still investigating.
In June 2018 lawyers for the estate trustees of Barry and
Honey Sherman's estates filed applications for certificates of appointment of
estate trustee. On the application of
the estate trustees, Justice Sean Dunphy of the Ontario Superior Court granted
initial ex parte protective orders sealing the applications and other documents relating to the administration of the estates. Following a contested application to open the
court files initiated by Mr. Donovan, Justice Dunphy ordered that the entire
court file be sealed and remain sealed for a period of two years, subject to
further order of the court.
The court of appeal later set aside that order and ordered
that the decision to allow access to the files would take effect 10 days after being released. However, before the decision took effect, the estate trustees brought a motion
for leave to the Supreme Court of Canada. A stay of the order to release the files was imposed. Mr. Donovan brought and argued on his own, a motion before Justice van Rensburg of the Court of Appeal to have the estate
administration files unsealed pending the decision of the Supreme Court of
Canada.
In upholding the stay, Justice van Rensburg held that the
test on a motion for stay of an order of the Court of Appeal pending an
application for leave to appeal to the Supreme Court of Canada had been set out
by Chief Justice Strathy in Livent v.
Deloitte & Touche – i.e. (1) whether there is a serious issue to be tried (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.
Justice Dunphy had held 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.
Their privacy had to be weighed against the right to free expression and
public interest in open and accessible court proceedings. In addition, there was an argument that there
was a real risk of serious physical harm to the beneficiaries and trustees. Justice van Rensburg held
that the first part of the Livent test had been met.
The threshold was low. There was
a serious question raised about whether public access to the files should
be denied in whole or in part for a period of time. She held that there was arguable
merit to the proposed application for leave to appeal to the Supreme Court. The appropriate analytical framework for
restricting public access to court files involving non-litigious or
administrative matters was something that the Supreme Court of Canada had not
yet determined. In addition, an issue
was whether in the digital age, having regard to the evolving jurisprudence
concerning personal privacy, a person's privacy interest can amount to an
important public interest at the first stage.
Justice van Rensburg held that the level of threshold in the first part
of the test first had been met and that the moving parties' application for
leave to the Supreme Court of Canada had some arguable merit.
With respect to the issue of irreparable harm, Justice van
Rensburg acceded to the moving parties argument that if the stay was not kept in place, the leave question to the Supreme Court of Canada would be moot. "By disseminating potentially
constitutionally protected confidential information that might at the end of
the process continue to be protected would mean that the then horse would be
out of the barn."
With respect to the balance of convenience, the only inconvenient part would be delaying access to files of
administration. There was no particular
urgency for public access to the files.
Justice van Rensburg held it was best to preserve the status quo until
the Supreme Court could rule on the matter. The files didn't bear themselves on the
criminal investigation so that really the only issue was whether the
public would be denied anything by continued sealing. She concluded that there simply no meaningful
part of either file that could not be disclosed after making redactions where
redactions were necessary and complete.
Regards,
Blair
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