The Supreme Court of Canada recently released its decision in Sherman Estate v Donovan, 2021 SCC 25, on the question of whether to grant a request from the estates' trustees to seal documentation relating to the will probate process.
There is little doubt that public interest in the decision relates more to the high-profile nature of the underlying deaths of Honey and Barry Sherman, than to interest in the courts' position on sealing orders. That being said, despite the technical and narrow issue considered, the ruling provides interesting insight into the Supreme Court's attitude toward privacy as a public interest in its own right, which is worthy of protection in certain circumstances.
Background
The deaths of the Shermans became a national fixation for a period of time, owing in part to the wealth and profile of the couple, and in part to the fact that their deaths were deemed suspicious by the authorities. The trustees of the estates sought a sealing order as part of the probate process, asking that the names and contact information for the individuals named in the wills be kept from the public.
The argument in support of the sealing order was that, if the documentation became public, the individuals named in the wills would a) be subject to intense media focus due to the public fascination with the Sherman story; and b) have their lives put in danger, presumably from the same unknown individuals potentially responsible for the deaths of Honey and Barry Sherman.
The Decisions
The Ontario Superior Court of Justice granted the sealing order. The decision was appealed to the Court of Appeal by a journalist. That appeal was successful in overturning the sealing order, setting the stage for the recent ruling from the Supreme Court.
The Supreme Court ruled unanimously to deny the appeal, meaning that the Court of Appeal's striking of the sealing order stands, and the probate documentation can be seen by the public.
Balancing Public Interests
At issue in this case, and indeed in any instance where a sealing order is considered, is the principle of open court proceedings. Put briefly, there is a strong public interest in ensuring that court processes and disputes are public. The open and public nature of all manner of court proceedings is integral for ensuring the public's trust in the justice system, as the public must be permitted to observe justice being done in order to be satisfied that it is indeed being done.
The issue of court openness has been expounded upon countless times by the courts, but it is not absolute. There have been moments in our judicial history when competing public interests rub up against this principle. The September 11, 2001 attacks in the United States, for example, saw here in Canada the creation of special in-camera proceedings on cases involving matters of national security.
Interestingly, the Supreme Court in Sherman suggested that there is now an increased need to consider the protection of personal privacy as a matter of public interest in certain circumstances. Specifically, when the dissemination of information that risks impacting a person's dignity is at stake, the courts should consider the protection of that information to be of public interest. The Court stated:
…personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person's dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest and a court can make an exception to the open court principle if it is at serious risk.
Even if the information at issue relates to a person's dignity, the Court stressed that this is not sufficient grounds alone to order a sealing order. The courts should consider first whether this information has already been disseminated widely in the public domain. Furthermore, the Court reiterated that a sealing order should only be granted where it is necessary to prevent the identified risk to a person's dignity, and that the benefits of doing so outweigh the negative effects to the openness principle.
Despite outlining the principles above, the Court rejected the estate trustees' appeal. First, the Court found that the information at issue was not core biographical detail, the release of which amounted to a threat to the dignity of those involved. Second, the Court rejected as speculation the suggestion that the safety of the individuals named in the will were in jeopardy.
Impact on Privacy Law
While dismissing the appeal, the Supreme Court in Sherman nevertheless stressed the importance of safeguarding the privacy rights of individuals. It is under rare circumstances that the Court will place limits on the open court principle, and so the Sherman ruling should not be underestimated in terms of its message regarding the role of the courts in safeguarding core elements of personal privacy.
This ruling is only the most recent of a number of judicial decisions at all levels recognizing that we now live in a time where personal privacy is at increased risk of exposure and abuse. The courts have recently recognized the new torts of harassment ( Caplan v. Atlas, 2021 ONSC 670), and of publicly placing a person in a false light ( Yenovkian v. Gulian, 2019 ONSC 7279). Both of these cases involved the dissemination of unflattering information by a tortfeasor.
Importantly, in both cases, the courts indicated that a person may be found liable for these torts even if the tortfeasor's behaviour falls short of being defamatory. In Yenovkian, for example, the court noted that individuals have a privacy right to control the way they present themselves to the world. Publicly disclosing certain personal details about a person without their consent can itself cause actionable harm.
As noted above, however, not all unwanted personal private information meets the standard of being in the public's interest to protect. Most personal information is of private concern only, even if it is embarrassing or uncomfortable. It is when personal information touches on a core aspect of a person's life, that it can be said to relate to a person's dignity. Some examples of such information provided by the Court in Sherman include:
- potentially stigmatizing medical diagnoses;
- sexual orientation; or
- potentially stigmatizing work history.
This is important commentary, particularly as the courts grapple with the advent of the new torts referenced above.
Interplay with New Torts
On the strict issue of sealing orders, Sherman likely hurts plaintiffs in online harassment or defamation cases. In those cases, at issue is the fact that allegedly harmful information has been published or disseminated widely. The Court will consider that in this context a sealing order would be unlikely to address the perceived harm to a plaintiff's dignity.
On the other hand, in a more general sense, the Sherman ruling provides tacit approval to the direction that lower courts have been moving, which is toward greater protection of personal privacy in an online world. The Court in Sherman makes clear that it is in the public interest to protect an individual's right to decide whether to share core personal details about themselves. This is welcome news for individuals seeking to enforce damages for alleged infringements on this right, and something for lower courts to consider when ruling on these new privacy-related actions.
Rogers Partners LLP is an experienced civil litigation firm in Toronto, Ontario. The firm represents insurers and self-insured companies in numerous areas, including motor vehicle negligence, occupiers' liability, product liability, professional negligence, construction claims, statutory accident benefits, disability benefits, municipal liability, medical negligence, sexual abuse, and insurance coverage disputes.
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