Shermans’ estate case to test tradition of open courts

Family of billionaires sought to seal estate files months after couple found slain in home

Canada’s long-standing open court tradition will be tested Tuesday at the Supreme Court of Canada in a case involving the last will and testament of murdered billionaires Barry and Honey Sherman.

In Canada, proceedings and documents in court, including probate matters where wills and estates are dealt with, are typically open to the public. With no notice to the media, the Sherman estate trustees obtained a sealing order on Barry and Honey’s estate files in 2018, six months after the murders of the high-profile philanthropists.

On one side of the case to be heard in Ottawa Tuesday is the Toronto Star, which will argue that an important pillar of Canadian democracy is the open court system, which fosters public scrutiny of the workings of the court. As it was once phrased in a century-old British case, justice must not only be done, it must be seen to be done.

“In asking for the court files relating to their estates (the Star reporter) was engaged in a staple of newsgathering — accessing Canada’s open courts. This principle of openness, constitutionally protected, is foundational to our democracy and critical to the public’s confidence in the administration of justice,” reads the opening line of the Toronto Star’s factum in the case, which will be argued by the newspaper’s lawyer Iris Fischer.

“(The reporter) and the Star, as members of the media, were exercising their public interest role as surrogates of the public.”

On the other side is the Sherman family and the three trustees representing their interests. According to the Sherman court filings in advance of the hearing, their lawyers will argue the privacy and the safety of the family should trump the open court principle in this case.

“While the media and the public may be curious about the private testamentary affairs of the Shermans given their wealth and the circumstances of their death, they have no proper interest in the Sealed Materials,” the Sherman family’s lawyers write in their brief to the court.

“The general public interest in maintaining court openness cannot outweigh the serious invasion of privacy and grave physical safety risks that the (Sherman trustees and beneficiaries of the estate) will face if the sealed materials are publicly disclosed.”

The hearing will be streamed live Tuesday at 9:30 a.m. The Sherman lawyers (Chantelle Cseh and Tim Youdan) will argue their case for the first hour. Toronto Star lawyer Fischer will argue the newspaper’s case for another hour.

Justices of the nine-member court may ask questions of each speaker.

Also during the hearing, in shorter segments, a series of intervenors will make arguments, including lawyers from the attorney general ministries in Ontario and British Columbia, the British Columbia and Canadian civil liberties associations, and numerous media groups including Postmedia, CTV, the Globe and Mail, Global News and Citytv, as well as two other groups, the Income Security Advocacy Centre and the HIV and AIDS Legal Clinic Ontario.

Barry and Honey Sherman were found dead in their Toronto home on Dec. 15, 2017. The cause of death was ligature neck compression. Toronto homicide detectives have told the Star their probe is “active and ongoing,” and that they have a theory on the case and “an idea of what happened.” No charges have been laid.

The Star’s ongoing investigation has revealed numerous problems with the almost three-year long investigation, including the recent revelation that police did not access Barry Sherman’s office for four weeks after his death.

Barry Sherman was the founder and majority owner of Apotex, the largest generic drug firm in Canada. Sherman’s net worth was described as $4.7 billion by the international financial press when he died. Insider sources at Apotex and Sherfam (the holding company that owns Apotex) have told the Star Sherman’s true net worth, including holdings around the world, is roughly $10 billion.

As part of its ongoing investigation into the unsolved case, a Star reporter went to look at the Sherman estate files in Toronto in July 2018.

(The computer terminal at the University Avenue courthouse indicated the Sherman estates were being probated — meaning that the trustees would settle any debts, distribute the proceeds to people or organizations named in the will, and pay what is known as an “estate administration tax.”)

The counter clerk told the Star there was a sealing order on the file, and the clerk said this was unusual. The order had been made by Justice Sean Dunphy of the Ontario Superior Court.

The Star reporter brought a motion to unseal the Sherman files. Dunphy rejected the Star’s position and sealed the files for two years. In his ruling in August 2018, Dunphy said:

“The interest of protecting the privacy and dignity of victims of crime and their loved ones is an important one. The degree of intrusion on that privacy and dignity has already been extreme and, I am sure, excruciating,” Dunphy said in his written ruling.

“By the same token, the apprehensions regarding risk, while necessarily speculative in these circumstances, are nevertheless reasonable. Without greater clarity regarding the motive underlying the crimes, it is impossible to acquire confidence that the motive is spent and might not be transported to some other who administers or is the beneficiary of the assets of the deceased.”

The Star reporter appealed to the Ontario Court of Appeal and on May 8, 2019, a threejustice panel overturned the Dunphy seal, saying there was no basis for a sealing order, and that the Shermans, though stating that there was an apprehension of risk of harm to the beneficiaries, had not put forward any information from the police to corroborate it.

“In our view, (Justice Dunphy’s) 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,” the court ruled.

The Sherman trustees then sought leave to appeal that ruling at Canada’s highest court. Leave was granted, leading to Tuesday’s hearing. Due to COVID-19 and restrictions on gatherings, no members of the public will be allowed into the court, and only a few lawyers at a time, along with the justices on the bench.

The Star’s interest in the estate court files is also related to questions that have been raised about the existence and content of the wills. Friends and family of the Shermans first told the Star that Honey did not have a will, and Barry’s was a simple will that left everything to the four children, Jonathon, Lauren, Alexandra and Kaelen, plus a proviso that grandchildren could, at the pleasure of the trustees, be given some money.

(Recently, a Honey Sherman confidante told the Star that Honey said in the weeks before her death that she was making a change to her will.)

Billionaires Barry and Honey Sherman were found dead in their North York home on Dec. 15, 2017. Homicide detectives have said their probe is “active and ongoing.”