In Sherman Estate v Donovan, the Supreme Court of Canada (SCC) unanimously affirmed the primacy of the open court principle, which is critical to democracy and can only be restricted where there is a serious risk to another important public interest. After rejecting an “unbounded interest in privacy”, the SCC recognized that restrictions on openness may be justified where dissemination of intimate information would threaten an individual’s dignity.
WHAT DID THE SCC HOLD?
The SCC affirmed that all court proceedings, whatever their nature, are presumptively open to the public and orders, limiting openness may only be obtained where:
court openness poses a serious risk to an important public interest;
the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and
as a matter of proportionality, the benefits of the order outweigh its negative effects.
An important public interest must transcend the interests of the parties to the dispute. The SCC recognized an aspect of privacy as such an interest, finding that where the dissemination of highly sensitive personal information would result not just in embarrassment but in an “affront to the affected person’s dignity”, an exception to the open court principle may be justified. However, the risk to this interest will be serious only where the information at issue is sensitive enough to strike at the individual’s “biographical core” in a manner that threatens their integrity. The SCC recognized that this is a “narrower dimension of privacy” and a high bar, tailored to preserve the strong presumption of openness.
WHAT HAPPENED IN SHERMAN ESTATE V DONOVAN?
Bernard “Barry” and Honey Sherman, prominent in business and philanthropic circles, were found dead in their Toronto home in December 2017.
The couple’s estate trustees (the Trustees) obtained a sealing order over documents filed with the Ontario Superior Court of Justice in aid of probate of the two estates. The Toronto Star newspaper attempted to access the estate files and was told the files were sealed. An application was commenced to unseal the files. While affirmed at first instance, the sealing orders were overturned by the Ontario Court of Appeal. The Sherman Estate appealed.
The SCC affirmed that the sealing orders should be lifted. The Court held that the Trustees failed to show that the information contained in the estate court files revealed anything particularly sensitive, and nothing that would strike at the biographical core of the affected individuals in a way that would undermine their dignity or integrity. Furthermore, and despite this being another ground advanced by the Trustees, the record did not show a serious risk of physical harm to any of the affected individuals. As the Trustees could not show a serious risk to an important public interest, they failed to clear the first stage of the test and were not entitled to an order restricting openness.
WHEN DO PRIVACY CONCERNS JUSTIFY AN ORDER RESTRICTING OPENNESS?
The SCC emphasized that any limitations on openness must be exceptional. The fact that openness may be disadvantageous, embarrassing or distressing will generally not warrant interference with court openness. An individual asserting a privacy interest sufficient to restrict openness must prove that public access to information would pose a serious risk to their dignity. Dignity will only be at serious risk where:
the information that would be disseminated reveals something intimate and personal about the individual, their lifestyle or their experiences; and
a serious risk to the interest is made out in the full factual context of the case, considering the extent to which the information is already in the public domain and the probability of dissemination actually occurring.
Even where it is established that there is a serious risk to an individual’s dignity from disclosure of information in a court proceeding, the court must still consider whether there are any other reasonable measures that could mitigate the risk and whether the benefits of the order outweigh its deleterious effects on, among other things, free expression rights.
The open court principle applies to all judicial proceedings. The SCC rejected the Trustees’ assertion that probate court proceedings were “administrative”, and that the imperative of applying the open court principle was somehow diminished.
A party seeking a restriction on openness must identify both an important public interest at stake and a serious risk to that interest in the particular context of the case. Speculative assertions of a risk are insufficient. Any inferences “must be grounded in objective circumstantial facts”.
Demonstrating an affront to dignity is a high bar. Mere discomfort or embarrassment associated with lesser intrusions of privacy will generally be tolerated. Individual dignity will only be impaired where the information is highly sensitive.
Information is not simply either “private” or “public”. Privacy is not a binary concept. It will be difficult to show that revealing information that is already broadly accessible will result in a meaningful loss of privacy. However, “just because information is already accessible to some segment of the public does not mean that making it available through the court process will not exacerbate the risk to privacy”.
Courts are required to consider whether less restrictive measures would effectively prevent the identified risk and to consider proportionality. Even if an applicant succeeds in showing a serious risk to dignity, courts are required to consider reasonably alternative measures and consider whether the benefits of the order outweigh its negative effects. There will be cases where the information that poses a serious risk to individual dignity will be central to the case, in which case “the interest in important and legally relevant information being aired in open court may well overcome any concern for the privacy interests in that same information.” Courts are required to apply the entire Sherman Estate v Donovan test rigorously, informed by the importance of the open court principle.
Blakes lawyers Iris Fischer, Skye Sepp, Ellie Marshall and Greg Sheppard acted for the respondents, Kevin Donovan and Toronto Star Newspapers Ltd., in this matter.
For further information, please contact:
Iris Fischer 416-863-2408
Skye Sepp 416-863-3887
Ellie Marshall 416-863-3053
Gregory Sheppard 416-863-2616
or any other member of our Media & Defamation group.
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