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.