S.C.C. File No. 38695

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)

BETWEEN:B E T W E E N: THE ESTATE OF BERNARD SHERMAN AND THE TRUSTEES OF THE ESTATE, and THE ESTATE OF HONEY SHERMAN AND THE TRUSTEES OF THE ESTATE Appellants (Respondents)(Respondents) - and - KEVIN DONOVAN Respondent (Appellant)(Appellant) - and - ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF BRITISH COLUMBIA, CANADIAN CIVIL LIBERTIES ASSOCIATION, INCOME SECURITY ADVOCACY CENTRE, AD IDEM/CANADIAN MEDIA LAWYERS ASSOCIATION, POSTMEDIAPOSTMEDIA NETWORK INC., CTV, A DIVISION OF BELL MEDIA INC., GLOBAL NEWS, A DIVISION OF CORUS TELEVISION LIMITED PARTNERSHIP, THE GLOBE AND MAIL INC. AND CITYTV, A DIVISION OF ROGERS MEDIA INC., BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION,ASSOCIATION, HIV & AIDS LEGAL CLINIC ONTARIO, HIV LEGAL NETWORK AND MENTAL HEALTH LEGAL COMMITTEE Interveners

FACTUM OF THE RESPONDENT KEVIN DONOVAN (Pursuant to Rule 42 of the Rules of the Supreme Court of CanadaCanada))

BLAKE, CASSELS & GRAYDON LLP BLAKE, CASSELS & GRAYDON LLP 199 Bay Street 340 Albert Street Suite 1750, Suite 4000, Commerce Court West ConstitutionConstitution Square, Tower 3 TToronto,oronto, ON M5L 1A9 Ottawa, ON K1R 7Y6 Iris Fischer —– LSO #52762M Fey Oni —– LSO #78094V Tel: (416) 863863-2408-2408 Tel: (613) 788-2210788-2210 [email protected] ffey.ey.oni oni@[email protected] com

Skye A. Sepp —– LSO #72385T Tel: (416) 863863-3887-3887 [email protected] ElliElliee Marshall —– LSO #78062B Tel: (416) 863863-3053-3053 Fax: (416) 863863-2653-2653 [email protected]

23863611.7 - 2 - Counsel for the Respondent, Kevin Donovan Ottawa Agent for the Respondent, Kevin Donovan ORIGINAL TO: THE REGISTRAR

COPIES TO:

DAVIES WARD PHILLIPS & VINEBERG SUPREME ADVOCACYADVOCACY LLP LLP 340 Gilmour Street, Suite 100 155 Wellington Street West Ottawa, ON K2P OR30R3 Toronto, ON M5V 3J7 Marie-France-France Major Timothy Youdan —– LSO #19390W [email protected] [email protected] Tel: (613) 695-8855695-8855 Chantelle Cseh —– LSO #60620Q Fax: (613) 695-8580695-8580 [email protected] Elie Roth —– LSO #429350 [email protected]

Rui Gao —– LSO #75470W [email protected] Tel: (416) 863863-0900-0900 Fax: (416) 863863-0871-0871

Counsel for the Appellants, the Estate of Bernard Counsel for the Appellants, the Estate of Bernard Ottawa Agent for the Appellants, the Sherman and the Trustees of the Estate and the Sherman and the Trustees of the Estate and the Estate of BernardBernard Sherman and the Estate of Honey Sherman and the Trustees of the Estate of Honey Sherman and the Trustees of the Trustees of the Estate and the Estate of Estate Estate Honey Sherman and the Trustees of the Estate ATTORNEY GENERAL OF ONTARIO BORDEN LADNER GERVAIS LLP Crown Law Office - Constitutional BranchBranch 1300-1001300-100 Queen Street 720 Bay Street, 4th Floor Ottawa, ON K11K1P3 1J9 Toronto, ON M7A 2S9 Karen Perron Peter Scrutton Tel: (613) 369-4795369-4795 Tel: (416) 326-4582326-4582 Fax: (613) 230-8842230-8842 Fax: (416) 326-4015326-4015 Email: [email protected] [email protected] [email protected]

Counsel for the Intervener, Attorney General of Ottawa Agent for the Intervener, Attorney Ontario General of Ontario

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ATTORNEY GENERAL OF BRITISH GIB VAN ERT LAW COLUMBIA 148 Third AvenueAvenue 865 Hornby Street Ottawa, ON K1S 2K1 Suite 1301 Vancouver, BC V6Z 2G3 Gib van Ert Tel: (613) 408-4297408-4297 Jacqueline D. Hughes Fax: (613) 651-0304651-0304 Katherine Webber [email protected] Tel: (604) 660660-4602-4602 Fax: (604) 660660-6797-6797 [email protected]

Counsel for the Intervener, Attorney General of Ottawa Agent for the Intervener, AttorneyAttorney British Columbia General of British Columbia

DMG ADVOCATES LLP GOWLING WLG (CANADA) LLP 155 University Avenue 160 Elgin Street Suite 1230 Suite 2600 Toronto, ON M5H 3B7 Ottawa, ON K11K1P3 1C3

Ryder Gilliland D. Lynne Watt Agatha Wong Tel: (613) 786-8695786-8695 Tel: (416) 238-7537238-7537 Fax: (613) 788-3509788-3509 Fax: (647) 689689-3062-3062 [email protected]@gowlingw1g.comgwlg.com [email protected]

CounselCounsel for the Intervener, Canadian Civil Ottawa Agent for the Intervener, Canadian Liberties Association Civil Liberties Association

BORDEN LADNER GERVAIS LLP BORDEN LADNER GERVAIS LLP Bay Adelaide Centre, East Tower 1300-1001300-100 Queen Street 34003400-22-22 Adelaide St. W. Ottawa, ON K11K1P3 1J9 Toronto, ON M5H 4E3 Karen Perron Ewa Krajewska Tel: (613) 369-4795369-4795 Teagan Markin Fax: (613) 230-8842230-8842 Mannu Chowdhury [email protected] Tel: (416) 367-6244367-6244 Fax: (416) 367-6749367-6749 [email protected]@b1g.com

Counsel for the Intervener, Income Security Ottawa Agent for the Intervener, Income Advocacy Centre Security Advocacy Centre

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FARRIS LLP GOWLING WLG (CANADA) LLP 700 W Georgia St. 160 Elgin Street, Suite 2600 25th Floor Ottawa, ON K1P 1C3 Vancouver, BC V7Y 1B3 Jeffrey W. Beedell Robert S. Anderson, Q.C. Tel: (613) 786-0171786-0171 Ludmila B. Herbst, Q.C. Fax: (613) 788-3587788-3587 Erica C. MMilleriller [email protected] [email protected] TeTel:l: (604) 661661-9372-9372 Fax: (604) 661661-9349-9349 [email protected]

Counsel for the Interveners, Ad IDEM/Canadian Ottawa Agent for the Interveners, Ad Media Lawyers Association, Postmedia Network IDEM/Canadian Media Lawyers Inc., CTV, a Division of Bell Media Inc., Global Association, Postmedia Network Inc., News,News, a division of CornsCorus Television Limited CTV, a Division of Bell Media Inc., Partnership, The Globe and Mail Inc. and Citytv, Global News, a division of CornsCorus a division of Rogers Media Inc. Television Limited Partnership, The Globe and Mail Inc. and Citytv, a division of Rogers Media Inc.

MCCARTHY TÉTRAULTTETRAULT LLP JURISTES POWER Suite 5300, Toronto Dominion Bank Tower 130, merue Albert Toronto, ON M5K 1E6 Bureau 1103 Ottawa, ON K1P 5G4 Adam Goldenberg Kathryn Gullason Darius BosséBosse Tel: (416) 601601-8357-8357 Tel: (613) 702-5566702-5566 Fax: (416) 868868-0673-0673 Fax: (613) 702-5566702-5566 [email protected] [email protected]

Counsel for the Intervener, British Columbia Ottawa Agent for the Intervener, British Civil Liberties Association Columbia Civil Liberties Association

23863611.7 - 5 -

HIV & AIDS LEGAL CLINIC ONTARIO SUPREME ADVOCACY LLP (HAL(HALCO) CO) 100-100- 340 Gilmour StreStreetet 1400-551400-55 University Avenue Ottawa, ON K2P OR30R3 Toronto, ON M5J 21172H7 Marie-France-France Major KhalidIChalid Janmohamed Tel: (613) 695-8855695-8855 Ext: 102 Ryan Peck Fax: (613) 695-8580695-8580 Tel: (416) 340-7790340-7790 Ext: 4045 [email protected] [email protected] Fax: (416) 340-7248340-7248 [email protected]

Counsel for the Interveners, 11WHIV & AIDS Legal Ottawa Agent for the Interveners, 11WHIV & Clinic Ontario, 11WHIV Legal Network and Mental AIDS Legal Clinic Ontario, 11WHIV Legal Health Legal Committee Network and Mental Health Legal Committee

23863611.7

TABLE OF CONTCONTENTSENTS

PART I — OVERVIEW AND FACTS ...... 11 A. Overview ...... 11 B. The factsfacts ...... 3 i) The Shermans’Shermans' deathsdeaths ...... 3 ii) The Sealing Order ...... 3 iii) The Application ...... 4 iv) The Appeal ...... 5 v) The New Evidence Motion ...... 6 PART II — ISSUES ON APPEAL ...... 7 PART III — STATEMENT OF ARGUMENT ...... 8 A. The standard of review is correctness ...... 8 B. The open court principle applies to all court proceedings ...... 8 i) Open courts and the rule of law ...... 8 ii) The guarantees provided by s. 2(b) of the Charter ...... 10 iii) The open court principle applies to probate proceedings ...... 12 (a) Probate is a court proceeding ...... 12 (b) Function of open courts is engaged by probate matters ...... 15 C. TheThe Dagenais/Mentuck/SierraDagenais/Mentuck/Sierra Club test applies ...... 19 D. Privacy interests are generally attenuated in court proceedings ...... 23 i) Individual privacyprivacy interests, "without“without more",more”, must yield to open courts ...... 23 (a) Privacy is not absolute ...... 24 (b) Not every invasion of privacy results in "harm"“harm” to a public interest ...... 26 ii) Where there is something "more",“more”, the DM/Sierra Club test protects privacy ...... 27 iii) Canadian privacyprivacy legislation does not affect thethe open court principle ...... 29 iv) The relevance of technological change is limited ...... 31 E. The Appellants'Appellants’ generalized privacy concerns cannot meet the first branch of the DM/Sierra Club test ...... 32 i) A risk of publicity is not "harm"“harm” ...... 32 ii) It is relevant that information is already in the public domain ...... 34 iii) Protection of minors'minors’ privacyprivacy not absolute ...... 35 iv) Reasonably alternativealternative measures not considered ...... 35 v) Harm to free expression outweighs attenuated privacy interests under the second branch of the DM/Sierra Club test ...... 35 F. The Appellants'Appellants’ speculative security concerns cannot satisfy DM/Sierra Club test . 37 i) The Appellants cannot satisfy the first branch of the test ...... 37 ii) Harm to the public interest outweighs the benefit to speculative security interests ...... 39 G. No basis for the Appellants'Appellants’ requested relief ...... 39 PART IV — COSTS SUBMISSIONS ...... 40 PART V — ORDER SOUGHT ...... 40 PART VI — SUBMISSIONS ON CONFCONFIDENTIALITYIDENTIALITY ...... 40 PART VII — TABLE OF AUTHORITIES ...... 41

SCHEDULE A —– LIST OF FEDERAL AND PROVINCIAL ACCESS TO INFORMATION LEGISLATION THAT DOES NOT APPLY TO COURT RECORDS..47RECORDS..47

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PART I — OVERVIEW AND FACTS A. Overview

1. TheThe matter leading to this this Appeal began with Kevin Donovan, the Chief Investigative Reporter for the Toronto Star newspaper (the "Star")“Star”) doing what reporters across the country do every day. DonovanDonovan went to the counter at the Estates court in Toronto and asked to see court files.files. He was investigating the murders of Bernard "Barry"“Barry” and Honey Sherman (the "Shermans")“Shermans”) andand had been on the case since shortly after their deaths. In asking for the court filesfiles relating to their estates (the "Estate“Estate Files"),Files”), he was engaged in a staple of newsgathering —– accessing Canada'sCanada’s open courts. This principle of openness, openness, constitutionallconstitutionallyy protected, is foundational to our democracy and critical to the public'spublic’s confidenceconfidence in the administration of justice. Donovan and the Star, as members of the media, were exercising theirtheir public interest role as surrogates of the public.

2. Investigative reporters reporters follow many leads and turn over many stones, including while looking into thethe circumstances of a homicide —– anan offence against the community in addition to the individual victims!victims.1 The Star’sStar's investigation into the Shermans’Shermans' death also engages broaderbroader scrutiny of the justice system, including the actions taken by police,police, as well asas the public interest in the regulation and taxation of large transfers of wealth.wealth. When Donovan learned the Estate Files had been sealed, without notice to the media and withwith no information available, he commenced an application to unseal them.

3. Since that time, the Appellants (the(the trustees of the Sherman estates and the estates themselves (the "Estates")),“Estates”)), have fought unsealing at every stage. They assert that the privacy of the estate trustees and beneficiaries (the "Sherman“Sherman Trustees and Beneficiaries")Beneficiaries”) andand security concerns due to the murders justify overriding the open court principle that assures Canadians of access to court proceedings and records. They continucontinuee to advocate for complete sealing of the Estate Files,Files, even after the Ontario Court of AppealAppeal ("ONCA")(“ONCA”) correctly held that they had not

1 R. v. Murdoch,Murdoch, [1988] O.J. No. 4658 (Ont. H.C.J.) ("Murdoch")(“Murdoch”) at para.para. 50 [Respondent's[Respondent’s Book of Authorities ("RBOA"),(“RBOA”), Tab 44],], aff'daff’d 1989 CarswellOnt 2733 (Ont. C.A.); see also R. v. TurpinTurpin,, [1990] O.J. No. 11261126 (Ont. H.C.J.) ("Turpin")(“Turpin”) at 2 [RBOA,[RBOA, Tab 5],5], aff'daff’d 1990 CarswellOnt 2154 (Ont. C.A.); Re Bradley et al. and The QueenQueen,, 1975 CanLII 766 (ON CA);CA); see also Scott Mair,Mair, "Challenging“Challenging Infanticide: Why Section 233 of Canada's Canada’s Criminal Code Is Unconstitutional" Unconstitutional” (2018) 41:3 Man. L.J. 241 at 264-65264-65 [RBOA,[RBOA, Tab 24].24].

23863611.7 -2- 2 - met their onus under this Court's Court’s longlong-standing-standing test for restrictions on court openness (the Dagenais/Mentuck/Sierra ClClubub2 or the "DM/Sierra“DM/Sierra Club test").test”).

4. In so doing, the Appellants rely on nothing more than a generalizedgeneralized assertion of privacy, advanced by them as a simple simple and all --encompassingencompassing concept that ignores the many nuances recognized by Canadian law and legal theory.theory. They also ignore the jurisprudence,jurisprudence, including from this Court, that recognizesrecognizes —– asas the ONCAONCA did —– that privacy with "something“something more"more” is capable of overriding openness under the flflexibleexible DM/Sierra Club test, but personal concerns "without“without more"more” cannot. While the AppellantsAppellants attempt to describe probate court proceedings as being of "minimal“minimal (if any)any) public interest",interest”,3 this does not withstand basic scrutiny. Probate is a judicial process that impacts rights and obligations between the estate and third parties, parties, in addition to those of beneficiaries and estate trustees.trustees.

5. The speculative security concernsconcerns advanced by the Appellants similarly cannot ground a restriction on court openness. They rely on a single paragraph of a 13-paragraph-paragraph sealed affidavit describeddescribed by the ONCA ONCA as containing "conclusory“conclusory assertions rather than statements of factfact".”.4 While that,that, and the bald suggestion that the beneficiaries and trustees are at risk simply because the Shermans were murdered and there have been no charges, charges, is reason enough to reject the security argument, the fresh evidence sought to be filed by Donovan providesprovides yet more. That evidence confirms that that those believed to be the Sherman Trustees and Beneficiaries are already well known and that Toronto police have no knowledge of any safety issues if the information in the Estate Files were unsealed.unsealed.5

6. AccedingAcceding to the Appellants'Appellants’ request here would be "a“a step too far”far"..6 IIff given the choice, any one of us might prefer our individual court mattermatter proceed in private. Yet itit is fundamental

2 2 Dagenais v. CanadiCanadianan BroadcastingBroadcasting CorpCorp.,., [1994] 3 S.C.R. 835 ("Dagenais");(“Dagenais”); R. v. Mentuck,Mentuck, 2001 SCC 76 ("Mentuck");(“Mentuck”); SierraSierra Club of Canada v. Canada (Minister of Finance),Finance), 2002 SCC 41 ("Sierra(“Sierra ClubClub").”). 3 Factum of the Appellants filed on January 27, 2020 ("Appellants'(“Appellants’ FactumFactum")”) at paras. 39, 113. 4 4 Donovan v. Sherman Estate,Estate, 2019 ONCA 376 ("Appeal(“Appeal Decision")Decision”) at para. 13. 5 5 [New[New EvidenceEvidence]] See below at para. 93. 6 6 In Re S (FC) (a child),child), [2004] UKHL 47 at para. 26, cited in R. v. Hosannah,Hosannah, 2015 ONSC 380 ("Hosannah")(“Hosannah”) at paras. 14, 18, 28.

23863611.7 - 3 - that this is not how our system works. Rather, "covertness“covertness is the exception andand openness the rule",rule”,7 absent necessity based on a real and substantial risk of harm. In the Shermans’Shermans' probate case, like the probateprobate cases of ordinary Ontarians every day,day, "the“the sensibilities of the individuals involved are no basis for exclusion of the publicpublic from judicial proceedings".proceedings”.8

B. The factsfacts

i) The Shermans'Shermans’ ddeathseaths

7. On December 15, 2017, Barry and Honey Sherman were found dead in their Toronto home. Barry was the founder of Apotex Inc., the largest generic drug manufacturer in Canada. At the time of theirtheir deaths, the Shermans were believed to have a net worth approaching $5 billion,billion,9 and both were well known in philanthropic circles.circles. Though initially pursued as a murder-suicide,-suicide, the case is now being investigated as a double homicide.

8. Due to the high public public profile of the Shermans, the questions raised about the police investigation, and the lack of arrests,arrests, the case has generated significant public interest. Their four children made public appearances in the aftermath of the murders. The Sherman Trustees, Trustees, including the Shermans’Shermans' son Jonathon Sherman and their son-in-lawson-in-law Brad Krawczyk,Krawczyk, have also appeared on public documentsdocuments.'.10°

ii) The Sealing Order

9. On July 11, 2018, Donovan attended at the Ontario Superior Court of JusticeJustice,, Estates office in Toronto and askedasked for the EEstatestate Files.Files. Donovan learned that a sealing order had been issued by Dunphy J. on June 26, 2018 (the "Sealing“Sealing Order"),Order”), meaning the filesfiles that would normally be available for public viewing were not. As a result of an error, the endorsement grantinggranting the Sealing OrderOrder was also not made part of the public files, meaning Donovan (and thethe rest of the public) had

7 A.G. (Nova Scotia) v. Maclntyre,MacIntyre, [1982] 1 S.C.R. 175 ("Maclntyre")(“MacIntyre”) at 185. 8 8 MaclntyreMacIntyre at 185. 9 9 Factum of the Applicant, Kevin Donovan, at the Ontario Superior Court of Justice dated JJulyuly 24, 28 at para. 5 [Respondent's[Respondent’s Record ("RR"),(“RR”), Vol. I, Tab 1].1]. 10 10 [New[New EvidenceEvidence]] Land Transfer Documents [RR, Vol. II, Tab 1]1] (defined below at footnote 27); Barry Will Article [RR,[RR, Vol. II, Tab 3]3] (defined below at footnote 30).

23863611.7 -4- 4 - no way of knowing why the contents of the Estate Files had been sealed."sealed.11 Donovan later learned that the Appellants had applied for the SealSealinging Order without notice to the media.12

iii) The Application

10. On July 23, 2018, Donovan commenced an application on behalf of himself and Toronto Star Newspapers Limited ("TSNL"),(“TSNL”), which publishes the Star, to terminate or vary the sealing order. The Appellants opposed the application. It was heard by Justice Dunphy on July 31, 2018.

11. IInn his decision, released August 2, 2018 (the "Application “Application Decision"),Decision”), the application judge concluded that the Shermans had satisfied the DM/DM/Sierra Club test and that the Estate FilesFiles would be sealed for a period of two years,years, subject to renewal "if“if the circumstancescircumstances then existing continue to warrant it”.it".13 As later held by the ONCA,ONCA, the application judge failed to apply the Sierra Club test correctly. On the first branch, he determineddetermined there were two "interest[s]“interest[s] of the respondents [that] would be served by granting a confidentiality order"order”14: the privacy interests of the Sherman Trustees and Beneficiaries, and a "necessarily“necessarily speculative"speculative”15 "apprehension“apprehension of risk”risk"16 of physical harm, on the basis that the murderers(s) and their motive(s) were unknown.unknown.17

12. The sole evidence of any risk of harm was a single 13 --paragraphparagraph affidavit (the "AB “AB Affidavit"),Affidavit”), which containcontainss "conclusory“conclusory assertions" assertions”18 and does not contain any evidence of warnings or opinopinionsions regarding the degree of risk from Toronto police (who are investigating the murders).murders).19 As the affidavit is also sealed,sealed, neither Donovan nor the public has knowledge of its contents —– or even the affiant —– beyond the descriptions given in lower court proceedings.proceedings.

13. The application judge then balanced the asserted interests against the open court principle. He found that the "progress“progress of estate files is fundamentally administrative in nature in most cases",cases”,

"11 Toronto Star Newspapers Ltd. v. Sherman Estate,Estate, 2018 ONSC 4706 ("Application(“Application Decision")Decision”) at para. 10. 12 Application Decision at paras. 66-11;-11; Appeal Decision at para. 1.1. 13 13 ApplicationApplication Decision at para. 3838.. 14 Application Decision at heading (ii), betweenbetween paras. 15-16;15-16; see also para. 22. 15 15 Application Decision at para. 23. 16 ApplicationApplication Decision at para. 19. 17 17 Application Decision at para. 5. 18 18 Appeal Decision at para. 13. 19 19 Application Decision at para. 21; Appeal Decision at para. 13.

23863611.7 - 5 - that sealing "removes“removes little from the public domadomainin that is not already ‘out`out there', there’”, and the additionaladditional details "relate“relate to matters where this no reason to believe there is a legitimate public interest".interest”. Finally, he concluded that it was impossible to seal only part of the Estates Files while 20 releasing anyany "meaningful"“meaningful” part as a reasonable alternative to the SSealingealing Order.Order. 20

iv) The Appeal

14. Donovan'sDonovan’s appeal of the Application Decision was heard by the ONCAONCA on April 29, 2019. On May 8, 2019, the Court released its unanimous decision allowing the appeal and settingsetting aside the SSealingealing OrderOrder (the "Appeal“Appeal Decision").Decision”). The ONCAONCA determined that the applicationapplication judgejudge had erred in his analysis of the firstfirst stage of the DM/SierraDM/Sierra Club test with respect to both the "privacy"“privacy” and "security"“security” concerns.

15. With respect to the privacyprivacy concern, the ONCAONCA found that while the ShermanShermanss wanted to keep estate-related-related matters private, that alone was insufficient to satisfy the first branch of the Sierra Club test:

[T]he kind of interest that is properly protected by a sealing order must have a public interest component.component. Personal concerns cannot, without more,more, justify an order sealing material that would normally be available to the public under the open court principle.principle.21 16. With respect to the security concernsconcerns,, the ONCAONCA concluded that therethere was "no“no evidence that could warrant a finding that disclosure of the content of the estate filesfiles posed a real risk to anyone'sanyone’s personal safety".safety”.22 The Court noted that there was no evidence "that“that would allow the motion judge to infer that the motive was unknown",unknown”, nor any suggestionsuggestion that the affiant of the AB Affidavit "knew“knew anything about the police investigation".investigation”.23 The Court held "the“the suggestion that beneficiaries and trustees are somehow at risk because the Shermans were murdered is not an inference, but is speculation. It providesprovides no basis for a sealing order".order”.24

20 ApplicationApplication Decision at paras.paras. 33 and 36.36. 21 21 Appeal Decision at para. 10 (citations(citations omitted; emphasis added).added). 22 22 Appeal Decision atat para. 13. 23 23 Appeal Decision at para. 15. 24 24 Appeal Decision at para. 16.

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17. On June 5, 2019, the Appeal Decision was stayed pending the leave to appeal application of the current Appellants.Appellants.25 This Court granted leave to appeal on October 31, 2019.

v) The New Evidence MotionMotion

18. On December 19, 2019, Donovan brought a motion to adduce four pieces or groupings of new evidence (the "New“New Evidence Motion")Motion”)26:

(a) documentsdocuments retrieved from the Ontario Land Registry Office dated August 2, 2018, which reveal the names, addresses, and dates of birth of the trustees of Honey Sherman’sSherman's estate (the "Land“Land Transfer Documents");Documents”);27

(b) excerptsexcerpts from the sworn cross-examinationcross-examination of Toronto Police ServiServicesces officer Detective Constable Dennis Yim, held on October 15, 2019 (the "TPS “TPS EvidenceEvidence").”).28 Detective ConstableConstable Yim, who was at the time the exclusive full-full- time officer on the investigation into the Sherman murders,murders, states that he is not aware of any safetysafety issues if the contents of the Estate Files are unsealed;29

(c) twotwo Star articlesarticles published on June 21, 2019 (the "Barry “Barry Will Article") Article”)30 and December 14, 2019 (the "Honey “Honey Will Article"), Article”),31 which cite interviews with sources suggesting both Barry and Honey died with wills. Though they now say it was an error, the Sherman Estates indicated in their factum on the underlying underlying

25 25 ReasonsReasons of Justice van Rensburg at the Court of Appeal for Ontario (Stay) [Appellants'[Appellants’ Record ("AR"),(“AR”), Tab 3]. 26 26 As of the date of the filing of this factum, this Court has not ruled on the New Evidence Motion.Motion. References to the new evidence are preceded with [New[New EvidenceEvidence].]. 27 27 [New[New EvidenceEvidence]] Land Transfer AT4927549 and Parcel Register (Abbreviated) for Property Identifier LT 83 PL, retrieved on December 12, 2019 [RR,[RR, Vol. II, Tab 1].1]. 28 28 [New[New EvidenceEvidence]] Transcript of the CrossCross--ExaminationExamination of Detective Constable Dennis Yim on October 15, 2019 [RR,[RR, Vol. II, Tab 2].2]. 29 29 [New[New EvidenceEvidence]] TPS Evidence at pp. 47:27-49:10,47:27-49:10, 51:1751:17-52:7,-52:7, 52:852:8-52:26-52:26 [RR,[RR, Vol. II, Tab 2].2]. 30 [New[New EvidenceEvidence]] Toronto Star, "Murdered“Murdered billionaire Barry Sherman plannedplanned to give away or invest much of his fortune, sources say"say” published June 21, 2019 [RR,[RR, Vol. II, Tab 3].3]. 31 31 [New[New EvidenceEvidence]] Toronto Star, "Honey“Honey Sherman had a will she updated shortly before billionaire couple slain, confidant reveals"reveals” published December 14, 2019 [RR,[RR, Vol. II, Tab 44].].

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application that the trustees were appointed "without“without a will".will”.32 The samesame language also appears in the Land Transfer Documents. This suggests the possibility of an issue regarding the administration of the EEstates;states;

(d) threethree newspaper articles articles dated between between January 24, 2019 and July 14, 2019 regarding public activities of two of the Sherman childrenchildren and presumed Sherman Beneficiaries (Alexandra Krawczyk and Kaelen Sherman)Sherman),, and a description of a recently--publishedpublished book by Donovan about the Sherman murdersmurders that identifies many of the family membersmembers and friendsfriends,, including many who spoke to Donovan (the "Continued“Continued PublicityPublicity").”).33

PART II — ISSUES ON APPEAL 19. The central issue on this Appeal is whether the ONCAONCA erred in unsealing the Estate Files. Answering this question requires this Court to address the following issues.

20. Regarding the privacy concern raised by the Appellants:Appellants:

(a) Is there a serious risk of harm to a public interest capable of satisfying the first branch of the DM/SierraDM/Sierra Club test?

(b) If so, are there reasonably alternative measures that could prevent the serious risk of harm to the privacy concerns?

(c) If the first branch of the DM/SierraDM/Sierra Club test is met,met, do the salutary effects of the sealing order outweighoutweigh its deleterious effects?

32 32 Responding Factum of the Estates at the Ontario Superior Court of Justice dated July 26, 2018 ("Responding(“Responding Factum on Application")Application”) at para. 30 [RR,[RR, Vol. I, Tab 2].2]. 33 33 [New[New EvidenceEvidence]] Jerusalem Post, "JNF “JNF Toronto plants trees in Israel for Barry and Honey SheShermanrman Z"L"Z”L” published January 24, 2019; Toronto Star, "Daughter“Daughter of Honey and Barry Sherman continues their legacy by supporting world gathering of Holocaust survivors"survivors” published May 1, 2019; CBC News, "Living“Living in fear but compelledcompelled to help: Daughter of murderedmurdered billionaire couple goes public"public” published July 14, 2019;2019; Paragraph 28 of the Affidavit of Kevin Donovan, sworn December 18, 2019 describing The Billionaire Murders: The Mysterious Deaths of Barry and Honey Sherman.Sherman. [RR,[RR, Vol. II, Tabs 5-6].5-6].

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21. Regarding the safety concern raraisedised by the Appellants:Appellants:

(a) Have the AppellantsAppellants established a real and substantial risk of harm to their safety were the Estate Files to be unsealed?unsealed?

(b) If so, are there reasonably alternative measures that could prevent the risk of harm to the safety of the SherShermanman Trustees and Beneficiaries?Beneficiaries?

(c) If the first branch of the DM/SierraDM/Sierra Club test is met,met, do the salutary effects of the sealing order outweigh its deleterious effects?

PART III — STATEMENT OF ARGUMENT A. The standardstandard of review is correctness

22. Donovan agrees with the Appellants Appellants that the standard of review is correctness, as the matters at issue are the legal principles that apply to a discretionary court order limiting the public'spublic’s right to know under s. 2(b) of thethe CCharter.harter.34

B. The open court principle applies to all court proceedingsproceedings

i) Open courts and the rule of law

23. Time and time again, this Court has confirmed the importance of the constitutional open court principle as a "hallmark“hallmark of democracy"democracy” and a "cornerstone“cornerstone of the common law",law”, essential for accountability and confideconfidencence in the administration of justice.justice.35 As Fish J. succinctly stated:stated: "In“In any constitutional climate, the administration of justice thrives on exposure to light —– and withers under a cloud of secrecy".secrecy”.36 IItt is important to recall the context of those often-cited-cited words in Toronto Star Newspapers v. Ontario —– an attempt by the CrownCrown to argue that the presumption of openness embodied in the DM/Sierra Club test37 should not apply toto a certain subset of court records (in(in that case,case, search warrant materials that werewere part of an ongoing police investigation).investigation).

34 34 M.E.H. v. WilliamsWilliams,, 2012 ONCA 35 ("M.E.H.")(“M.E.H.”) at paras. 3535-36,-36, citing Dagenais at 864864-65;-65; Mentuck at paras. 41-43, 41-43, 46-47; 46-47; Sierra Club at para. 48; 48; Canadian Charter of Rights and Freedoms,Freedoms, s. 2(b), The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c.c. 11 (the "Charter").“Charter”). 35 35 See e.g.e.g. VancouverVancouver Sun (Re)(Re),, 2004 SCC 43 ("Vancouver(“Vancouver Sun")Sun”) at paras. 23-25.23-25. 36 36 Toronto Star NewspapersNewspapers Ltd. v. OntarioOntario,, 2005 SCC 41 ("Toronto(“Toronto Star 2005")2005”) at para. 1. 37 37 In that case, in the criminal context, referred to as the Dagenais/Mentuck test.

23863611.7 - 9 -

This Court responded by unanimously confirconfirmingming the presumptive openness of all court proceedings.38

24. The concept of openness is deeplydeeply embedded in the common law and existed for centuries before the enactment of thethe Charter.39 By the nineteenth century, English courts had held that "one“one of the essential qualities of a Court of Justice [was] that its proceedings should be public".public”.4°40 Canadian courts likewise long recognized that "covertness “covertness is the exception and openness the rule".rule”.41 In Gazette Printing vv.. Shallow, Duff JJ.,., as he then was, stated: "The“The general advantage to the country in having these proceedings made public, more than counterbalances the inconvenience to the private persons whose conduct may be the subject of such proceedings".proceedings”.42

25. The rationale for open courts is deeply established and oft repeated.repeated. As this Court stated in VancouverVancouver Sun (Re)(Re)::

Public access to the the courts guarantees the integrity of judicial processes by demonstrating "that“that justice is administeredadministered in a non--arbitraryarbitrary manner, according to the rule of law”.law". Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public'spublic’s understanding of the administration of justice.justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the publicpublic at large abide by the decisions of courts.43 26. JJudicialudicial independence is thus another reason courts in Canada are open and accessible.accessible. Courts are constitutionally insulated from political interference in recognition that "independence“independence and impartiality are fundamentalfundamental not only to the capacity to do justice in a particular case but also to

38 38 Toronto Star 2005 at paras.paras. 4, 7. 39 39 Canadian Broadcasting Corp. v. New Brunswick (Attorne(Attorneyy General)General),, [1996] 3 S.C.R. 480 ("CBC(“CBC 1996")1996”) at para. 21. See also Richmond Newspapers vv.. VirginiaVirginia 448 U.S. 555 (1980) [RBOA,[RBOA, Tab 77]] at 565565-566;-566; Toronto Star v. AG OntarioOntario,, 2018 ONSC 2586 ("Toronto(“Toronto StarStar 2018")2018”) at para. 3, tracing the "venerability"“venerability” of the open court principle as far back as the Magna Carta.

4°40 Daubney v. Cooper (1829)(1829),, 109 E.R. 438 at 440 (K.B.) [RBOA,[RBOA, Tab 1].1]. See also Scott v. Scott,Scott, [1913] A.C. 417 (H.L.) ("Scott").(“Scott”). 41 41 MaclntyreMacIntyre at 185. 42 42 Gazette Printing v. Shallow (1909), 41 S.C.R. 339 at 359, citingciting R. v. WrightWright (1799),(1799), 8 T.R. 293 at 298 [RBOA,[RBOA, Tab 6].6]. 43 43 VancouverVancouver Sun at para. 25 (citations(citations omitted; emphasis added).added).

23863611.7 - 10 - individual and public confidence in the administrationadministration of justice".justice”.44 TheThe open court principle is the primary mechanism by which courts are held accountable.accountable.

27. This Court has repeatedly emphasized that the open court principle "applies“applies to all judicial proceedings"proceedings” and at "all“all stages".stages”.45 Access to the courtscourts does not require a threshold analysis of the nature of the proceeding or invite slicing and dicing of the "contentiousness"“contentiousness” of a matter. Rather, in line with its crucial role in democracy, openness openness casts a light on the workings of the administration ofof justice in general,general, subject only to limited and narrow restrictions.46

28. The result is a strong presumption in favour of open court proceedings regardless of their form or contentcontent:: "At“At every stage the rule should be one of public accessibilityaccessibility and concomitconcomitantant judicial accountability".accountability”.47 Or, in the words of LLaForestaForest JJ.. in CBC vv.. New Brunswick:Brunswick: "The“The open court principle, seen as ‘`thethe very soul of justice'justice’ and the ‘`securitysecurity of securities',securities’, acts as a guarantee 48 that justice is administered in a non-arbitrary-arbitrary manner,manner, according to the rule of law".law”. 48

ii) The guaranteesguarantees providedprovided by s. 2(b) of the Charter

29. Section 2(b) of the Charter affirms the common law principle of openness.49 It guarantees the freedom to express ideas and opinions about the operation of the courts, asas well as the right of members of the public to obtain information about the courts in the firstfirst place.5°50 As Cory J. noted:

44 44 ValenteValente v. The QueenQueen,, [1985] 2 S.C.R. 673 at 689. 45 45 VancouverVancouver Sun at para. 23; Toronto Star 2005 at para. 31. 46 46 See Mentuck at paras. 34-39.34-39. 47 47 MacIntyre atat 186 per Dickson J. See also The Hon. Beverley McLachlin, "Courts,“Courts, Transparency and Public Confidence —– To the better Administration of Justice”Justice" (2003) 8:1 Deakin L. Rev. 1 at 66-7-7 [Book of Authorities of the Appellants ("ABOA"), (“ABOA”), Tab 14]: "A “A single unifying unifying purpose animates all these benefits of the open courcourtt principle —– the preservation of public confidence in the administration of justice. By promoting and preserving preserving public confidence iinn the judicial system, the open court principle serves to maintain thethe authority of the courts and the rule of law in a civil society".society”. 48 48 CBC 1996 at para. 22 (full(full citations omitted; emphasis added).added). 49 49 Edmonton Journal vv.. Alberta (Attorney General)General),, [1989] 2 S.C.R. 1326 ("Edmonton(“Edmonton Journal")Journal”) at 13391339-40.-40. 5°50 CBC 19961996 at para.para. 23.

23863611.7 - 11 -

Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trialtrial …... Those who cannot attend rely in large measure upon the press to inform them about court proceedings —– the nature of thethe evidence that was called, the arguments presented, the comments made by the trial judge —– in order to know not only what rights theythey may have, but how their problems might be dealt with in court. It is only through the press that most individuals can rereallyally learn of what is transpiring in the courts. They as "listeners"“listeners” or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can can only be obtained from the newspapers or other media.media.51 30. The Supreme Court of the United States has also emphasized that thethe press'spress’s interest in being able to report what takes place in court is constitutionally protected, recognizing their function as "surrogates“surrogates for the public".public”.52 In Canadian Broadcasting Corporation vv.. New Brunswick (Attorney General), thisthis Court similarly noted: "As“As a vehicle through which information pertaining to these courts is transmitted, the press must be guaranteed access to the ccourtsourts in order to gather information".information”.53 ThThisis Court went on to say that "[F]reedom“[F]reedom of the press is, and must be, largely unfettered"unfettered” and that:

[M]easures that prevent the media from gathering that information, and from disseminating it to the public, restrictrestrict the freedom of the press. To the extent that such measures prohibitprohibit public access to the courts and to information about the courts, they may also be said to restrict freedom of expression in so far as it encompasses the freedom of listeners to obtain iinformationnformation that fosters public criticism of the courts."courts.”54 31. Courts have therefore clearly recognized the constitutionally-protected-protected newsgathering function of the media, and that it must be guaranteed access to court proceedings without undue governmental intinterference.erference.55 This includes the presumptive right to access "anything“anything that has been made part of the record",record”,56 including court filingsfilings of all kindskinds:: filed court exhibits (whether they

51 51 Edmonton Journal at 1339-401339-40 (emphasis(emphasis added).added). 52 52 Richmond Newspapers v. VirginiaVirginia,, 448 U.S. 555 (1980)(1980) [RBOA,[RBOA, Tab 7].7]. 53 53 CBC 1996 at para.para. 26. 54 54 CBC 1996 at para.para. 26. 55 55 CBC 1996 at paras.paras. 24-26;24-26; Canadian Broadcasting Corp. v. Lessard,Lessard, [1991] 3 S.C.R. 421 at 429-30,429-30, per La Forest J.J.;; see also R. v. ViceVice Media CCanadaanada Inc.,Inc., 2018 SCC 53 at para. 14. 56 56 Canadian Broadcasting Corp. v. R.,R., 2010 ONCAONCA 726 ("CBC(“CBC 2010")2010”) at para.para. 44.

23863611.7 - 12 - were played in court or not),57 the right to make copies,58 and to broadcast these records.records. Such presumptive access to records applies to all judicial proceedings,proceedings, regardless of whether the parties are engaged in a highly contentious dispute or seeking an order on consent.consent.

iii) The open court principleprinciple applies to probateprobate proceedingsproceedings

32. In describing probate proceedings as "fundamentally“fundamentally administrative"administrative” and of "minimal“minimal (if any) public interest", interest”,59 the Appellants mischaracterize both probate proceedings and the importance and rationale for the open court principle. It is not only criminal cases that merit openness. Indeed, thethe workings of the courts are engaged daily in many types of civil proceedings. TheThe public is entitled to the same level of cconfidenceonfidence in the administration of justice when a court exercises its oversight of the dispositdispositionion of a deceased'sdeceased’s assets through an order granting probate as in any other case.case. Court and public scrutiny ensure, among other things, that the true last will and testament of the deceased is acted upon without mischief.

(a) Probate iiss a courtcourt proceeding

33. AnAn application to probate a will in Ontario requires a court proceeding. This is a clear legislative choice, evident from the statutory framework governinggoverning probate in Ontario. The Rules of Civil Procedure provide that,that, in order to obtain a Certificate of AppointmentAppointment of an Estate Trustee under either Rule 74 ("Non(“Non--ContentiousContentious Proceedings")Proceedings”) or Rule 75 ("Contentious(“Contentious Proceedings"),Proceedings”), an application must be made.made.6°60

57 57 Canadian Broadcasting Corp. v. The QueenQueen,, 2011 SCC 3 at para. 12: "Access“Access to exhibits is a corollary to the open court principle".principle”. See also CBC 2010 at paras. 43-44.43-44. 58 58 CBC 2010 at paras. 3131-33.-33. See also Edmonton Journal,Journal, citing Nixon v. WarnerWarner Communications, Inc.,Inc., 435 U.S. 589 (1978) at 597 [RBOA,[RBOA, Tab 2],2], where the court noted that freedom of the press means that the statestate must not interfereinterfere with an individual'sindividual’s ability to "inspect“inspect and copy public records and documents, including judicial records and documents".documents”. 59 59 Appellants'Appellants’ Factum at paras. 39,39, 113. 60 60 Ontario, Rules of Civil Procedure,Procedure, R.R.O. 1990,1990, Reg. 194 ("Rules"),(“Rules”), IT.rr. 74-75.74-75. This application is an "originating “originating process", process”, defined in the Rules as "a “a document whose issuing commences a proceeding under these rules":rules”: r. 1.03(1), "originating“originating process".process”.

23863611.7 -13-- 13 -

34. Section 137 of the Courts of Justice ActAct61 applies to probate proceedings in the same way as all otherother court proceedings, providing that "[o]n“[o]n payment of the prescribed fee, a person is entitled to see any document filedfiled in a civil proceeding in a court, unless an Act or an order of the court provides otherwise".otherwise”. While this is subject to the court'scourt’s discretiondiscretion to issue a sealing order,62 itit is not disputed that discretion must be exercised constitutionally and in line with the DM/SierraDM/Sierra Club test.63 There is no special statute that restricts access to probate court files, nor is there any distinction drawn betweenbetween accessing the court records of "non“non--contentious"contentious” probate proceedings (or other "non “non--contentious"contentious” proceedings, such as matters on consent) and "contentious"“contentious” ones.ones. Indeed, in his affidavit filedfiled before the applicationapplication judgejudge in this matter, Donovan noted that he had on "numerous“numerous occasions successfully viewed the estate files of high profile people",people”, including that of the late Toronto Mayor Rob Ford.Ford.64

35. Nor is it relevant that thatthat in probate proceedings there is usually no hearing.65 A similar argument was rejectedrejected by the majority in Maclntyre,MacIntyre, which held that openness applied in "judicial“judicial proceedings, whatever their nature",nature”,66 even though the function of the justice of the peace granting search warrants "is“is not adjudicative and is not performed in open court".court”.67

36. LLegislationegislation in Ontario has long provided for public access to wills and the certificate of the grant of letters of administration.68 Presumptive access to probate court records was affirmed inin 1990, when Ontario merged the surrogate courts (which(which previouslypreviously had jurisdiction over probate matters under the Surrogate Courts Act)Act) into the Ontario Court (General Division), governed by the Courts of Justice Act —– including s. 137.137.69 At that time, and since, itit was open to the Legislature

61 61 Courts of Justice Act,Act, R.S.O. 1990, c. C.43 ("CJA"),(“CJA”), s. 137. 62 62 See also CJACJA,, s. 137(2). 63 63 Appellants'Appellants’ Factum at para. 36. 64 64 Affidavit of Kevin Donovan on Application to the Ontario Superior Court of Justice, sworn July 18, 2018 at para. 6 [RR,[RR, Vol. I, Tab 3].3]. 65 65 Appellants'Appellants’ Factum at para. 114. 66 66 MacIntyre at 185 (emphasis(emphasis added).added). 67 67 MacIntyre at 197,197, per Maitland J. (dissenting). 68 68 The Surrogate Courts Act,Act, R.R.S.O. S.O. 1877, c. 46, s. 50 [RBOA,[RBOA, Tab 9],9], now thethe EstatesEstates Act,Act, R.R. SS.O..O. 1990,1990, c. E.21 ("Estates(“Estates Act"),Act”), s. 27. 69 69 What remained of the Surrogate Courts ActAct became the Estates Act:Act: Court Reform Statute Law Amendment Act, 1989,1989, S.O. 1989, c. 56 [RBOA,[RBOA, Tab 8].8].

23863611.7 - 14 - to restrict access to probateprobate proceeding records by statute, or to move probate out of the courts entirely. It did not, demonstratingdemonstrating a legislative choice to provide access.7°70

37. While the Appellants assert that there is no legal requirement for probate in certain circumstances (that (that do not apply here),here), or in QuebecQuebec (a different jurisdiction with a different system)system)71, this merely proves the point that the Ontario Legislature chose to maintain probate as a public court proceeding in Ontario.Ontario. The existence of alternative processes by whichwhich an individual may dispose of their their assets after death or alternatives to proving a will does not affect the application of the open court principle to probate proceedings any more than the existence of private alternative dispute resolution mechanisms affects the application of the principleprinciple to civil litigation proceedings.proceedings. What matters is that the proceeding is before the courts.

38. Finally, the Appellants also argue that the "compelled “compelled collection and disclosure" disclosure” of information is "in “in essence" essence” a form of governmental action. 72 Yet, the Appellants Appellants have not challenged the constitutionality of the filing requirements under the Courts of Justice Act or the Rules of Civil Procedure. Procedure. The collection of the information required in the requisite Forms (including(including name,name, address, occupation)73 is not "compelled",“compelled”, any more than a defendant seeking to

70 70 RuthRuth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016) at 181-2181-2 [RBOA,[RBOA, Tab 27];27]; ATCO Gas & Pipelines Ltd. v. Alberta (Energy & UtilitiesUtilities Board),Board), 2006 SCC 4 at para. 59. Further, recently proposed amendments to the Estates Act aimed at creating a simplified procedureprocedure for small estates do not affect the presumptive openness of probate records. To the contrary, the Legislature continues to affirm probate as a courtcourt proceeding: see Bill 161, Smarter and Stronger Justice Act, 2020,2020, 1st Sess., 42nd Leg., Ontario, 2019 (first reading December 9, 2019), SchedulSchedulee 9 (see also Schedule 6, where proposed amendments to the CJA do not impact estates or probate); Ontario,Ontario, Legislative Assembly, OffiOfficialcial Report of Debates (Hansard)(Hansard),, 42nd Parl., 1st Sess., No. 143 (February 19, 2020) at 6968 (Hon.(Hon. DougDoug Downey).Downey). 71 71 For non-notarial-notarial wills, Quebec has a probate process: Art. 772 C.C.Q. 72 72 Appellants'Appellants’ Factum at para. 53. 73 73 See e.g. Form 74.04, "Application“Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant)"Applicant)” (updated September 1, 2018),2018), per CJA and Rules,Rules, rr. 1.06, 74.04 ("Form(“Form 74.04")74.04”) [RBOA,[RBOA, Tab 15];15]; FormForm 74.15, "Application“Application forfor Certificate of Appointment of Estate Trustee Without a Will (Corporate Applicant)"Applicant)” (updated April 11, 2012),2012), per CJA and Rules,Rules, rr. 1.06, 74.15 ("Form(“Form 74.15") 74.15”) [RBOA, [RBOA, Tab 18];18]; Form 74.07, "Notice “Notice of an Application for a

23863611.7 - 15 - defend a claim is "compelled"“compelled” to filefile a statement of defence. These are simply necessary, legally authorized and reasonable steps for a desired outcome.

(b) Function of open courtscourts is engaged by probate matters

39. While the open court principle applies to probate proceedings because they are dealt with in the courts,courts, this was not by happenstance. ProbateProbate derives from the Latin probatumprobatum ("a(“a thing proved")proved”) and is the "judicial“judicial procedureprocedure by which a testamentary document is established to be a valid will".will”.74 The probate process serves an important public function in Ontario that impacts not only the rights of beneficiaries and trustees, but also impacts rights and obligations as between the estate and third parties.

40. Historically,Historically, the probate of a will would proceed as either "common“common form"form” or "solemn“solemn form".form”. Under common form probate, the court ensured compliance with the procedural formalities of the will and, so long as the formalities werewere complied with,with, probate would be granted.75 If there were irregularitiesirregularities,,76 or the will was contested, the matter would be tried and the court would grant probate in solemn form.77 The distinction between common and solemn form probate is captured today in Rule 74 and Rule 75 of Ontario'sOntario’s Rules of Civil Procedure with respect to obtaining a

Certificate of Appointment of Estate Trustee With a Will"Will” (updated February 1, 2015),2015), per CJAC.L4 and Rules,Rules, IT. rr. 1.06, 74.07 ("Form(“Form 74.0774.07")”) [RBOA, [RBOA, Tab 16]; 16]; Form 74.17, "Notice “Notice of an Application for a Certificate of Appointment of Estate Trustee Without a Will" Will” (updated November 1, 2005),2005), per CJACM and Rules,Rules, IT.rr. 1.06, 74.17 ("Form(“Form 74.17")74.17”) [RBOA,[RBOA, Tab 19].19]. 74 74 The Oxford English Dictionary, 3rd ed.ed.,, sub verbo "probate"“probate” [RBOA,[RBOA, Tab 29];29]; Black'sBlack’s Law Dictionary,Dictionary, (11th ed., 2019),2019), sub verbo "probate"“probate” [RBOA,[RBOA, Tab 13].13]. 75 75 Albert H. Oosterhoff "The“The Discrete Functions of Courts of Probate and Construction"Construction” (Paper delivered at the Law Society of Upper Canada 19th Annual Estates and Trusts Summit, November 3, 2016) at 12 [RBOA,[RBOA, Tab 26].26]. 76 76 For example, "where“where the application is not complete or contains information about which the registrarregistrar has a doubt, including alternations, etc. made to the will or where the witnesswitness cannot recall the condition or date of the will,"will,” the filefile must be sent to a judge for determination: Ministry of the Attorney General, Estates Procedures Manual (Ontario: Ministry of the Attorney General, 2020), ss. 3.2.2(10), 3.3.88 [RBOA,[RBOA, Tab 25].25]. 77 77 OosterhoffOosterhoff at 12.

23863611.7 - 16 -

Certificate of Appointment of an Estate Trustee.Trustee.78 Despite these jurisdictional and terminological changes,changes, the purpose of probate remains essentially the same. As describeddescribed by Cullity J:

In its origins - and throughout its long history - the jurisdiction [of a probate court] has always been inquisitorial in the sense that it was the function and obligation of the court "to ascertain, and pronounce, what is the last will or what are the testamentary documents constituting the last will of the testator, which is or are entitled to be admitted to probate". The role of the court is not simply to adjudicate upon a dispute between parties. The judgment of the court granting probateprobate does not bind only the parties to the proceeding. Unless, and until, it is set aside, it operates in rem and can affect the rights of other persons...79 41. There are at least two purposes for the court'scourt’s involvement in the probate process.8°80 First,First, it helps protect the deceased's deceased’s testamentary intentions by ensuring a degree of independent oversight. In this way, probate also protects the entitlements of beneficiaries by ensuring they receive noticenotice of their interestsinterests or competing interests, and protects the eestatestate trustees from liability

78 78 Rules.Rules. The Rules adopt the term "Certificate“Certificate of Appointment of Estate Trustee"Trustee” with or without a will. Nevertheless, the term "probate"“probate” continues to be used informally to refer to this process, withwith or without a will: Law Commission of Ontario,Ontario, Simplified Procedures forfor Small Estates: Final Report,Report, (Toronto: August 2015) ("LCO(“LCO Report"),Report”), endnote 1. 79 79 Otis v. OtisOtis,, 2004 CanLII 311 (ON SC) at paras. 23-2423-24 (citations(citations omitted).omitted). 80A further purpose, the collection of estate taxes, dates at least to the Magna Carta, whichwhich is also a foundational document concerning the open court principle. The immediate context of the 13th century concern that the King was not to rule alone on the cases of his social inferiors, and that freemen ought to receive the lawful judgement of theirtheir equals, was the process of transferringtransferring estates to heirs. The legal rights given by the Magna Carta included a right to participate in their enforcement and consequently, access to information about the extent to which they were being obeyed. This has been referred to as the "coordinated“coordinated enforcement aspect of publicity".publicity”. See Paul Gowder, The Rule of Law in the Real WorldWorld (Cambridge: Cambridge UP, 2016) at 132-33132-33 [RBOA,[RBOA, Tab 23].23].

23863611.7 - 17 - by confirming their authority to act —– even if the will is later set aside.81 SecondSecond,, probate can affect the rights of third parties.parties. When a court grants a CertificateCertificate of Appointment over the estate,82 it creates a document that can be relied on and impact strangers to the estate. As ProfessorProfessor Freedman has noted,noted, the role of the court in the probate process ensures the in rem rights in the estate’sestate's assets granted to the estate trustee "is “is not later impeachable to the prejudice of all".all”.83 Probate thus "confers“confers transactional certainty",certainty”, and allows for the administration of estates not just in Ontario but transnationally.84

42. Indeed, a grant of probate has numerousnumerous legal implications.implications.85 The AppellantsAppellants themselves note that probate is generallygenerally required to transfer real property registered in the Land Titles System and by third parties such as banks.86 TThesehese institutions require purported trustees to verify their standing to act on behalf of the estate in court to avoid fraud and ensure compliancecompliance with other statutory protections.protections.87

43. TheThe probate process therefore requires trustees and beneficiaries to give up a small degree of privacy in front of the courts in order to avoid the potential for greater harms arising from uncertainty of rights and interests in estate assets.assets. The public expects and relies upon the courtscourts to deal with probate matters fairly and competently,competently, even in the most "routine"“routine” of non-contentious-contentious

81 81 Rules,Rules, rr. 74.04(2) and 74.05(2)74.05(2) both require that notice of the applicationapplication for Certificate of Appointment of Estate Trustee "shall“shall be served on all persons entitled to share in the distribution of the estate”;estate"; Trustee Act,Act, R.S.O. 1990, c. T.23, s. 47(1). 82 82 Form 74.20, "Certificate“Certificate of Appointment of Estate Trustee Without a Will"Will” (updated November 1, 2010), 2010), per CJA and Rules,Rules, rr. 1.06, 74.20 [RBOA,[RBOA, Tab 20]; 20]; Form 74.21, "Application“Application for Certificate of Appointment as Succeeding Estate”Estate" (updated November 1, 2005), 2005), per CJACM and Rules,Rules, rr. 1.06, 7474.21.21 ("Form(“Form 74.2174.21")”) [RBOA,[RBOA, Tab 21].21]. 83 83 C. D. Freedman, "Probate“Probate Contests and the New Law of Summary Judgment”Judgment" (2014) 34 Estates, Trusts & Pensions J 199 at 200 [RBOA,[RBOA, Tab 22].22]. See also Estates Act,Act, s. 52. 84 84 Freedman at 200 (emphasis(emphasis added)added) [RBOA,[RBOA, Tab 22].22]. 85 85 For example, the limitation period for support claims under the Succession Law Reform Act,Act, R.S.O. 1990, c. S.26 is only triggered by the grant of probate: s. 6161.. SSeeee alsoalso Bank Act,Act, S.C. 1991, c. 46, s. 460,460, which provides that a grant of probate will be "sufficient“sufficient justificationjustification and authority for giving effect to the transmission"transmission” of a deceased'sdeceased’s assets. 86 86 Appellants'Appellants’ Factum at para.para. 119.119. 87 87 LCO Report at 5, 49-50.49-50.

23863611.7 - 18 - probate files. That confidence in the court system —– and confidence in legal processesprocesses impacted by estate law, from land titles to contracting in the namename of an estate —– cannot be maintained if probate files are sealed away.away.

44. In Edmonton Journal,Journal, Wilson J recognized thethe public interest in open courts as rooted in four primary concerns: (a)(a) maintainingmaintaining an effective evidentiary process; (b)(b) ensurensuringing the judiciary and juries behave fairly and are sensitive to the values espoused by the society; (c)(c) promotingpromoting a shared sense that our courts operate with integrity and dispense justice; and (d) (d) providingproviding an ongoing opportunity for the community to learn howhow thethe justice system operates and how the law being applied daily in the courts affects them.

45. TheseThese rationales for openness apply to probate proceedings. proceedings. Just as open courtrooms 88 improve the qualityquality of testimony by producing a "disinclination“disinclination to falsify”,falsify",88 soSO too does anan open probate system discourage mischief or fraud on the part of potential trustees (who are required to swear an affidavit to obtain a Certificate of Appointment).Appointment).89 The probate process also engagesengages matters of public policy —– generally, as noted above, and sometimes related to specific bequests.bequests.9°90 Though the scope of a public policy interventionintervention in a will is limited, open probate proceedings allow for these occurrences to be more eeasilyasily discovered, for the court to address matters as needed and, where necessary, for the legislature to intervene. In terms of integrity, openness of probate proceedings builds public confidence that justice is being administered properly. Finally, involvementinvolvement in a probate application is likely one of the most common interactions Canadians have with the court system. 91 Openness of probate proceedings builds fafamiliaritymiliarity with court

88 88 Edmonton Journal at 1358, citing Wigmore, Evidence,Evidence, vol. 6 (Chadbourn rev. 1976) at 435-36.435-36. 89 89 FormForm 74.04 [RBOA,[RBOA, Tab 15];15]; Form 74.74.14,14, "Application“Application for Certificate of AppointmentAppointment of Estate Trustee Without a Will (Individual Applicant)"Applicant)” (updated September 1, 2018),2018), per CJACM and Rules,Rules, nrr.-. 1.06, 74.14 ("Form(“Form 74.14")74.14”) [RBOA,[RBOA, Tab 17];17]; Form 74.15 [RBOA,[RBOA, Tab 18];18]; Form 74.21 [RBOA,[RBOA, Tab 21].21]. 9°90 See e.g. McCorkill v. Streed, Executor of the Estate of Harry Robert McCorkill (aka McCorkell), Deceased,Deceased, 2014 NBQB 148 at para. 10, aff'daff’d 2015 NBCA 50, leave to appeal to S.C.C. refused (June 9, 2016). 91 91 About 50% of all estates in Ontario go through the process: Ontario, Legislative Assembly, Official Report of Debates (Hansard)(Hansard),, 42nd Parl., 1st Sess., No. 143 (February 19, 2020) at 6968 (Ted Arnott).

23863611.7 - 19 - processes and the duties of trustees. ThisThis educational benefit is most likely to occur through the media reporting on the testamentary affairs of public figurefigures.s.

46. The distinction the Appellants attempt to create in terms of the public interest in different types of court proceedings is both untenable and unconstitutional. It would lead down a slippery slope toward less open proceedings —– and endless further debate aboutabout the extent to whether a given proceeding (or part of a proceeding) is sufficientlysufficiently "contentious"“contentious” or "important"“important” to warrant application of the open court principle.principle. TheThe public, Charter rights,rights, and the administration of justice would all suffer as a result.result. Probate proceedings are court proceedings, engage the same concerns about the transparency and accountability of the administration of justice as other types of proceedings,proceedings, and engage the same consequent benefits from open courts.

47. In a speech relied on heavily by the Appellants, McLachlin C.J. recited Louis D. Brandeis'Brandeis’ famous quote: "Sunlight“Sunlight is said to be the best of disinfectants."disinfectants.” TThehe context of the 1913 Harper'sHarper’s WeeklyWeekly article in which it first appeared is instructiveinstructive.. Brandeis'Brandeis’ article, "What“What PublicityPublicity Can Do"Do”92 was motivated by what he saw as a "social“social and industrial disease":disease”: the concentration of wealth in the very few. The solution Brandeis proposed, publicity,publicity, served as a crucial tool in the antitrust movement in the early 20th century.93 The public'spublic’s interest in transfers of wealth and the regulation and taxation of such transfers should not be forgotten.

C. The Dagenais/Mentuck/SierraDagenais/Mentuck/Sierra Club test applies

48. Despite their attempt to distinguish probate filesfiles from other court files,files, there is no disputedispute from the Appellants that the two-parttwo-part DM/SierraDM/Sierra Club test applies.applies. This is the correct approach.

49. The DM/SierraDM/Sierra Club testtest is thethe test for all discretionary orders restrictingrestricting court openness.openness. As explained by this Court'sCourt’s unanimous decision in Toronto Star Newspapers Ltd. v. OntarioOntario,, where the Crown argued that the test ought not to be applied with respect to the sealing of search warrant application materials:

92 92 Louis D. Brandeis "What“What Publicity Can Do",Do”, Harper'sHarper’s WeeklyWeekly (December 20, 1913) 10 [RBOA,[RBOA, Tab 14].14]. 93 93 James Robert Brown Jr., The Regulation of Corporate Disclosure,Disclosure, 3rd ed., 2011-122011-12 Supplement (New York: Wolters Kluwer, 2016) at 2-3.2-3.

23863611.7 - 20 -

This argument argument is doomed to failure by more than two decades of unwavering decisions in this Court: the Dagenais/Mentuck test has repeatedly and consistently been applied to all discretionary judicial orders limiting the openness of judicial proceedings.proceedings.94 50. Regardless of the name, the test is fundamentally the same, having two branches with thethe same essential requirements, both of which must be satisfied for a restriction on court openness to issue. What differs is the context in which the test is applied. In general form,form, the DM/SierraDM/Sierra Club test requires that the party seeking a restriction on openness show that:that:

(1) such an order is necessary95 in order to prevent a serious risk to an important public interest, interest,96 including because reasonably alternative measures will not preventprevent the risk; and (2) the salutary effects of the order outweigh its deleterious effects, including the effects on the right to free expression and thethe public interest in open and accessible court proceedings.97 51. Courts have repeatedly recognized the fleflexiblexible and contextual nature of the DM/SierraDM/Sierra Club test in applying to new situations.98 Nevertheless, its core elements remain constant.

52. Due to the constitutional nature of the open court principle, the DM/SierraDM/Sierra Club test incorporates "the“the essence"essence” of the test from R.R. vv.. OakesOakes,, with the firstfirst branch reflecting the minimal impairment branch of the Oakes test and the second part reflecting the proportionality requirement.requirement.99 The approach is intended to ensure that the "exercise“exercise of judicial discretion to order

94 94 Toronto Star 2005 at para. 30 (emphasis(emphasis added).added). See also paras. 7, 28. 95 95 In his reasons, Lamer C.J. emphasizedemphasized thatthat such an order must be "necessary":“necessary”: Dagenais at 878. 96 96 Though the Appellants emphasize the words "in“in the context of litigation"litigation” in Sierra ClubClub,, as noted above the DM/Sierra Club applies to all judicial proceedings: Toronto Star 2005 at para. 30. 97 97 Sierra Club at paras. 40, 5353-55;-55; Mentuck at paras. 23, 32; Toronto Star 2005 at para. 26. 98 98 CBC 1996 at para. 36; Mentuck at para. 37 ("This(“This test exists to ground the exercise of discretion in a constitutionally sound manner, not to command the same result in every case");case”); Sierra Club at paras. 47-48;47-48; Canadian Broadcasting Corporation and Others v. HMQ,HMQ, 2013 CanLII 75897 (ON SC) at para. 25; Toronto Star 2018 at para. 134. 99 99 VancouverVancouver Sun at para. 28. See also Dagenais at 878; Sierra Club at para. 40; Toronto Star 20182018 at para. 89.

23863611.7 - 21 -

[restrictions on court openness] is subjectsubject to no lower a standard of compliance with the Charter than legislative enactment”.enactment".1°°100

53. UnderUnder the firstfirst branch of the test, there must exist a serious risk of harm to a public interest that cannot otherwise be addressed.addressed. Further, the severity of the riskrisk —– sufficient to restrict openness, must be supported by the evidence:evidence: the risk must be "real“real and substantial",substantial”,1°1101 "well“well grounded in the evidence",evidence”,102 “specific”,ccspecific",1°3103 and cannot be "remote“remote [or] speculative"speculative”1°4104, or based on a "general“general assertion".assertion”.1°5105 In short,short, "it“it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained".obtained”.1°6106

54. The requirement that the risk be to a public, rather than private,private, interest is also essessential.ential. This is usually expressed as a risk to the administration of justice: for example, the right to a fair trial;107 identities of undercover officers;officers;108 or preventing the psychological harm of cyberbullying to children,children,109 though otherother public interests are also possible."possible.110° Thus, in Sierra ClubClub,, this CourtCourt held that it would be insufficient for a private company to argue that a "contract“contract should not be made public because to do so would cause the company to lose business, thus thus harming ititss commercial interests".interests”.1111" Rather, the "interest“interest must be one which can be expressed in terms of a public interest in confidentiality" confidentiality” (in that case, it was the preservation of commercial and contractual relations, and the right of civil litigantslitigants to a fair trial.).trial.).112

1°°100 Mentuck at para. 27. 101ioi Dagenais at 880; Mentuck at para. 34. 1°2102 Mentuck at para. 34; Sierra Club at para. 54. 103 103 Toronto StarStar 2005 at para. 39. 104 Dagenais at 880. 1°5105 Toronto Star 2005 at para. 41.41. 1°6106 Mentuck at para. 34; Toronto Star 2005 at para. 27. 107 Dagenais at 879; Sierra Club at para. 50. 108 108 Mentuck at para. 35. 1°9109 ,4.B.A.B. v. Bragg Communications Inc.,Inc., 2012 SCC 46 ("Bragg")(“Bragg”) at para. 23. 1110 lo M.E.H. at paras. 25-26.25-26. 111 Sierra Club at para. 55. 112 Sierra Club at paras. 51, 55. As stated by this Court iinn Sierra Club at para. 55: "Simply“Simply put, if there is no general principle at stake, there can be no "important“important commercial interest”interest" for the purposes of this test. Or, in the words of Binnie J in F.N. (Re(Re),), 20002000 SCC 35 at para. 10,10, the open

23863611.7 -22-- 22 -

55. Crucially, the necessity branch does not involve a weighing of the benefits and harms of the order sought.sought. Balancing occurs at the second branch of the test, and only if the firstfirst branch is made out. As the ONCA has stated:

A court court faced with a case like this one where decency suggests some kind of protection for the respondent must avoid the temptation to begin by asking: where is the harm in allowing the respondent to proceed with some degree of anonymity and without her personal information being being available to the media? Rather, the court must ask: has the respondent shown that without the protective orders she seeks there is a serious risk to the proper administration of justice?"justice?1133 56. ThisThis requirement ensures that freedom of expression is not lightlylightly cast aside or too easily subordinated to other interests.interests. In Dagenais,Dagenais, Lamer CJ noted that the pre-Charter-Charter common law rule that emphasized the right to a fair trial over the free expression interests of those affected by the ban was "inconsistent"“inconsistent” withwith the CharterCharter's’s equal status given to the rights protected in ss. 2(b) and 11(d)."11(d).1144 He went on to hold:

A hierarchical approach to rights, which places some over others, must be avoided, both whenwhen interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importimportanceance of both sets of rights.rights."1155 57. The final requirement under the first branch —– that no reasonably alternative measures exist —– requires a judge to "not“not only consider whether reasonable alternatives are available, but also to restrict the order as far as possiblepossible without sacrificing the prevention of the risk”.risk".116 In practicalpractical

court rule only yields "where“where the public interest in confidentiality outweighs the public interest in openness"openness” (emphasis(emphasis added).added). 113 113 M.E.H. atat para. 32. See also Mentuck at para. 34; R. v. Kossyrine & VorobiovVorobiov,, 2011 ONSC 6081 at para. 16, per Nordheimer JJ.:.: "The“The test, of course, is not whether it is safer to impose a publication ban. If that were the test, then publication bans wouldwould routinely be granted....granted…. That result was, of course, expressly rejected in Dagenais".Dagenais”. 114 Dagenais at 877. 115 Dagenais at 877. 116 116 Mentuck at para. 36.

23863611.7 - 23 - terms, a court cannot seal the entirety of the file when sealing a single document would suffice, nor can it issue a sealing order when a publication ban would suffice.117

58. Only if the necessity branch of the DM/SierraDM/Sierra Club test is successfully met by the party seeking the order will a court proceed to the second branch.branch.118 This is a question of proportionality, and anan order will only issue iiff the salutary effects of an order outweigh the deleterious effectseffects,, including on freedom of expression and the press. press. An order restricting the media in its newsgathering function and public access requires more than "speculative“speculative and marginal improvements".improvements”.119

D. Privacy interests are generally attenuated in court proceedings

i) Individual privacyprivacy interestsinterests,, “without"without more",more”, must yieldyield to open courts

59. The Appellants repeatedly take issue with the ONCA'sONCA’s holding that the privacy concerns asserted in this case "without“without more"more” cannot justify a confidentiality order. They go so far as to say that the ONCA refused to recognize privacyprivacy as an important interest12°120 and that this will mean "freedom“freedom of expression will always trump an interest in privacy".privacy”.121 This position misinterprets the ONCA'sONCA’s holdiholding,ng, which did not say that privacy can never justify a restriction on openness, but correctlcorrectlyy held that "personal “personal concerns cannot, without more". more”.122 The "something “something more" more” required —– and missing in this case —– was a "public“public interest component".component”.123 This is entirely in line with both the jurisprudence on the open court principle and the contextual nature of privacy. It is a correct holding that should not be disturbed.

60. It is difficult to understand the Appellants'Appellants’ argument, as they concede that a countervailingcountervailing interest under the DM/SierraDM/Sierra Club test must be "one“one which can be expressed in terms of a public

117 117 What alternative measures should be considered is necessarily contextual. See e.g. Sierra Club at para. 63. 118 118 Mentuck at para. 48. 119 119 See e.g. Mentuck at para. 49. 120 Appellants'Appellants’ Factum at paras. 25, 43, 68. 121 121 Appellants'Appellants’ Factum at para. 68 (emphasis(emphasis in original).original). 122 122 Appeal Decision at para. 10. 123 123 Appeal Decision at para. 10.

23863611.7 - 24 - interest in confidentialiconfidentiality”.ty99.124124 They further argue "The“The time has come to recognize that privacy is, in appropriate circumstances,circumstances, one such interest".interest”.125 However, the Appellants never explain what those appropriate circumstances might be or how they will differ differ from inappropriate circumstances. Nor do they explain how the application of an "appropriate “appropriate circumstances" circumstances” standard would differ from the "without“without more"more” requirement applied by the ONCA.ONCA. The existing framework appropriately recognizes the malleable naturenature of privacy interests by applying a contextually-sensitive-sensitive test. WhereWhere a litigant seeks a confidentiality order, a court engaged with the first branch of the DM/Sierra Club test cannot look to privacy in the abstract but must look at whether the particularparticular privacyprivacy interest at issue and the harm alleged are significant enough to overcome the presumption of openness.

61. SimSimplyply put, there is no dispute that privacy, "in“in appropriate circumstances",circumstances”, can constitute a public interest capable of satisfying the necessitynecessity branch of the DM/Sierra Club test. However, in order to preserve the fundamentally important open court principleprinciple and s. 2(b) Charter rights, such circumstances will be necessarily narrow and require a concern that transcends the personal and engages a greater public interest. Such an approach is amply supported by the principles of Canadian privacy jurisprudence establishedestablished by this Court.Court.126

(a) Privacy is not absolute

62. While the Appellants acknowledge that privacy is not an "all“all or nothing"nothing” concept,concept,127 the conceptconcept of privacy they ultimately advance is exactly that: in suggesting that a loss of privacy without further articulationarticulation is enough to justify a sealing order, the Appellants in effect argue that litigants should have complete control over information they they filefile in court proceedings. This conception of privacy is fl flawedawed and unworkable. If accepted, privacy would become become all - consuming of the Canadian constitutional order.

63. Litigants routinely provide information in court documents that engage their personal and private interests. The mere existence of these interests does not, without more, imbue the

124 124 Appellants'Appellants’ Factum at para. 37, citing Sierra Club at para. 55. 125 125 Appellants'Appellants’ Factum at para. 44. 126 126 See e.g. R. v. Jarvis,Jarvis, 2019 SCC 10 ("Jarvis")(“Jarvis”) at paras. 6060-66.-66. 127 127 Appellants'Appellants’ Factum at para. 77.

23863611.7 - 25 - information filed in court with special status. It is well established that the concept of privacy encompasses a number of related types of interests that differ greatly in nature and scope. This "theoretical“theoretical disan disarray”-ay"128 is reflected in the principle that determining whether a person can reasonably expect privacy requires a contextual assessment that takes into account the "totality“totality of circumstances".circumstances”.129 Further, CanadianCanadian jurisprudence recognizes that the "desire“desire for privacy is never absolute, since participationparticipation in society is an equally powerful desire".desire”.13°130 Privacy interests are thus routinely "balanced“balanced against legitimate social needs"needs” in all areas of law.131

64. On a constitutionalconstitutional level, this is reflected in the fact that sections 7 and 8 of the Charter protect against unreasonable privacy violations by the state. It is well established that privacy violations will generally be constitutionally acceptable if authorized by a reasonable law and carried out in a reasonable manner.132 This is because privacy, as a constitutionalconstitutional concept, is "not“not simply about defining the nature of the privacy interest at stake, but is also about ensuring basic rule of law values concerning constraconstraintsints on public power".power”.133 However, where privacy comes into conflict with another important societal interest, it may be required "yield“yield to the exigencies of the other".other”.134

65. In practice, these legal principles align with a common sense understanding of privacy.privacy.135 Canadian privacy jurisprudence recognizes that there is "no“no crude public/privatepublic/private dichotomy, but

128 128 R. v. Spencer,Spencer, 2014 SCC 43 at para. 35. 129 129 Jarvis at paras. 38, 60. 130 130 Alan F. Westin, Privacy and Freedom (New York: Ig Publishing, 1967) at 55-6-6 [RBOA,[RBOA, Tab 30];30]; See also R. v. O’ConnorO'Connor,, [1995] 4 S.C.R. 411 ("O'Connor")(“O’Connor”) at para. 117; R. v. GombocGomboc,, 2010 SCC 55 at para. 17; R. v. Dyment,Dyment, [1988] 2 S.C.R. 417 at 427-28;427-28; Ruth Gavison, "Privacy“Privacy and the Limits of the LawLaw"” (1980) 89 Yale LJ 421 at 440. 131 131 O’ConnorO'Connor at para. 117; See also Jones v. TTsige,sige, 2012 ONCA 32 ("Jones")(“Jones”) at para. 73. 132 132 Lisa M. Austin, "Towards“Towards a Public Law of Privacy: Meeting the Big Data Challenge"Challenge” (2015) 71 SCLR (2d) ("Austin,(“Austin, Public Law")Law”) at 552 [RBOA,[RBOA, Tab 11].11]. 133 133 Austin, Public Law at 550 [RBOA,[RBOA, Tab 11].11]. 134 134 Edmonton Journal at 1353 (per Wilson JJ.)..). See also Hunter v. Southam,Southam, [1984] 2 S.C.R. 145 at 167-168;167-168; R. v. R.R.V. V..,, 2019 SCC 41 at para. 65; R. v. Mills,Mills, [1999] 3 S.C.R. 668 at para. 94; O’ConnorO'Connor at para. 11; R. v. TseTse,, 2012 SCC 16 at para. 94; Communications, Energy and PaperworkersPaperworkers UnionUnion of Canada, LocalLocal 30 v. Irving Pulp & Paper, Ltd.,Ltd., 2013 SCC 34 at para. 5252;; BMG Canada Inc. v. Doe,Doe, 2005 FCA 193 at para. 41. 135 135 Jarvis at para. 60.

23863611.7 - 26 - rather multiple social spheres in which we live”live"136 and which will entail correspondingly different expectations of privacy.137 Generally, circumstances that givegive rise to a reasonable expectation of privacy will be circumstances in which a person would reasonably expect not to be the subject of the type of access or observation that occurred.138 Thus, for example, a lover’slover's former partner surreptitiouslysurreptitiously viewing one'sone’s banking records invokes a generally strong expectation of privacy,139 but when applying for a mortgage "there“there is a diminished expectation of privacy in records produced during the ordinary course of regulated activities".activities”.14°140 In open court proceedings, there is no reasonable expectation of privacy.141

66. Further,Further, how the courts govern the transfer of estates is not an area that society has determined should be free from accountability. The transactional certainty afforded by the judicial oversight of probate proceedingsproceedings benefits the public by ensuring "all“all the world [has] confidence in transacting with the executor".executor”.142 This context,context, and the context and purpose of open courts more generally, must be considered when assessing whether the privacy claim asserted by the Appellants can or should override the open court principle.

(b) Not every invasion of privacy results in "harm"“harm” to a public interest

67. The Appellants also point to an impression that privacyprivacy is growing in social importance to imply that privacy law offers respite respite from all perceived intrusions. This position cannot be accepted for at least two reasons. First, asas Sharpe J. noted in Jones vv.. TsigeTsige,, the question of appropriate protection foforr privacy has been debated for over 120 years and "aspects“aspects of privacy have lolongng been protected by causes of action such as breach of confidence, defamation, breach of copyright, nuisance and various property rights".rights”.143

136 136 Austin, Public Law at 546 [RBOA,[RBOA, Tab 11].11]. 137 137 Jarvis at paras. 37, 58; See also Helen Nissenbaum, "Privacy“Privacy as Contextual IntegrityIntegrity"” (2004) 79 Washington LR 101. 138 138 Jarvis at para.para. 28. 139 139 See Jones.Jones. 140 140 R. v. Jarvis,Jarvis, 2002 SCC 73 at para. 72. 141 Khuja v. Times Newspapers Limited and others,others, [2017] UKSC 49 ("Khuja")(“Khuja”) at para. 34(3). 142 142 Smith Estate v. Rotstein,Rotstein, 2011 ONCA 491 at paras. 25-26.25-26. 143 143 Jones at para. 15. See also the discussion of privacy and openness in, e.g., MaclntyreMacIntyre at 194-194- 98, citing Scott;Scott; Edmonton Journal at 1337-39.1337-39.

23863611.7 -27-- 27 -

68. Second, it is wrong to suggest that anan "increasing“increasing emphasis on privacy"privacy” in Canadian law, even if accepted, means thatthat "a“a serious risk to privacy"privacy” can be simply equated with a serious risk of harm. Privacy law protects an individual’sindividual's security, self-fulfillmentself-fulfillment and autonomy by ensuring a contecontextuallyxtually appropriate social balance between disclosure and an individual’sindividual's ability ability to meaningfully choose a state of privacy.144 It is common sense that not every loss of privacy will result in an equivalent harm to these values, nor will every loss engage a commensurate public interest necessitating legal protection, protection, because there are countless circumstances in which we seriously risk our privacy in order to participate in society.145

69. In this vein, the ONCA in Jones v. Tsige recognized that only "deliberate“deliberate and significant invasions of privacy"privacy” could found a claim for intrusion of seclusion,seclusion, and claims "from“from individuals who are sensitive or unusually concerned about their privacy are excluded”.excluded".146 The Court also noted the possibility of other values,values, "foremost...“foremost… the protection of freedom of expression and freedom of the press",press”, and that privacyprivacy would need to be "reconciled“reconciled with, and even yield to,to, such competing claimsclaims".”.147

ii) WhereWhere there is something “more”,"more", the DM/Sierra Club test protectsprotects privacyprivacy

70. It is entirely consistent with Canadian privacy jurisprudence that courts applying the DM/Sierra Club test have long required that the risk of harm resulting from a loss of privacy engage a broader public interest than just the loss of privacy alone.148 ThiThiss is the something "more"“more” required by the ONCA in this case.

71. While the Appellants points to this Court'sCourt’s decision in A.B. Communications v. Bragg as a "relatively“relatively recent and promising step in the right direction in balancing privacy rights with court

144 144 See Lisa M. Austin, "Re“Re-Reading-Reading Westin"Westin” (2019) 20 Theoretical InquiInquiriesries in Law 53 at 57, 59 [RBOA,[RBOA, Tab 10].10]. 145 145 See Westin at 55-6-6 [RBOA,[RBOA, Tab 30].30]. See also Gavison at 440. 146 146 Jones at para. 72. 147 147 Jones at para. 73. 148 148 See e.g. CBC 1996 at para. 42: "In“In this area of the law, however, privacy interests are more likely to be protected where it affects some other social interest or where failure to protect it will cause significantsignificant harm to the victim or to witnesses".witnesses”.

23863611.7 - 28 - opermess",openness”,149 this decision does not assist them. It is an example of the "something“something more"more” required by ccourtsourts before granting confidentiality orders. Bragg concerned a 15-year-year-old-old girl who had been subject to sexualized cyberbullying by means of a fake Facebook profile. She sought an order against an internetinterne service provider to disclose the names of the perpetrators,perpetrators, and an order allowing her to pursue that litigation anonymously (as well as a publication ban over the content of the profile). Abella J.J.,, writing for a unanimous Court, recognized the "critical“critical importance of the open court principle and a free press"press” while exploring the specific "interests“interests said to justify restricting such access in this case: privacy and the protection of children from cyberbullying.cyberbullying. These interests must be shown to be sufficiently compelling to warrant restrictions on freedom ofof the press and open courts.courts."” 15°150

72. Bragg identified the appellant'sappellant’s interest as not "merely“merely a question of her privacy, but of her privacy from the relentlessly intrusive humiliation of sexualized online bullying".bullying”.151 The Court granted the anonymity order (but notnot the publication ban)152 on the basis that "common“common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication"publication”153 and that,that, in addition to psychological harm,harm, it waswas necessary to "consider“consider the resulting inevitable harm to children — and the administration of justice — if they decline to take stepssteps to protect themselves because of the risk of further harm from public disclosure".disclosure”.154 Far from protecting privacy simplicter,simplicter, the decision of this Court in Bragg was clearly based on a finding that there was "something“something more".more”.

73. Many other cases applying the DM/Sierra Club framework have considered privacy concerns. Numerous examples reflect a recognition that, while a loss of privacyprivacy can satisfy the necessity branch of the DM/SierraDM/Sierra Club test, something more is required that elevates the privacy interest beyond an individual'sindividual’s personal concerns and sensibilities to a serious risk of harm to a

149 Appellants'Appellants’ Factum at para. 67. 15°150 BrakeBragg at para. 13. 151 151 Bragg at para. 14 (citations(citations omitted).omitted). 152 152 BrakeBragg at paras.paras. 3030-31.-31. 153 153 Bragg at para. 27. 154 154 BrakeBragg at para. 23.

23863611.7 - 29 - public interest that is capable of overridingoverriding the Charter-protected-protected open court principle.155 This is exactly the standard applied by the ONCA in this case.

iii) Canadian privacyprivacy legislation does not affect the open court principleprinciple

74. TheThe Appellants assert that thethe existence of data protection and accessaccess to information and privacy laws is evidence of legislative intervention in favour of "safeguarding“safeguarding privacy".privacy”.156 NotNot only is such legislation irirrelevantrelevant to this Appeal —– it explicitly does not apply to court records and does not interfere with the open ccourtsourts principle —– but more generally it incorrect to imply that such legislation is intended to prohibit information sharing.157 TheThe intent of both public and private sector datadata protection/access/privacyprotection/access/privacy legislation is to balance privacyprivacy protections against societal interests in the disclosure of information under the rule of law.law.

75. For instance, the Personal Information Protection and Electronic Documents Act ("P(“PIPEDA”) IP EDA" ) 15158 8 is far far from the Appellants'Appellants’ "perfect“perfect example”example" of legislation that ensures the protection of privacy.159 The purpose of PIPEDA is to "recognize“recognize an individual'sindividual’s right of privacy with respect to their personal information and the need of organizations to collect, useuse or disclose personal information for purposes that a reasonable person would consider consider appropriate in the circumstances".circumstances”.16°160 As explained by this Court in Royal Bank of Canada vv.. Trang, "PIPEDA“PIPEDA does not set out a blanket prohibition on disclosure without knowledge and consent”consent"..161 It simply ensures there are limits on collection and disclosuredisclosure of personal information by the commercial

155 155 See e.g. WinterWinter v. Sherman Estate,Estate, 2018 ONCA 379 ("Winter")(“Winter”) at paras. 18-19;18-19; M.E.H. at paras. 29-30,29-30, 6060-62;-62; Toronto Star Newspaper Ltd. v. OntarioOntario,, 2012 ONCJ 27 at paras.paras. 75-76;75-76; A. v. Laurent Amyot and Conseil Scolaire Catholique Franco-Nord,-Nord, 2019 ONSC 3459 at paras. 24-24- 28; A.B. v. UniUnitedted Kingdom (Attorney General)General),, 2019 NSSC 289 at paras. 22-35;22-35; Jane Doe v. Newfoundland and Labrador, Labrador, 2015 NLTD(G) 151 at paras. 22-40; 22-40; Alderville First Nation v. CanadaCanada,, 2017 FC 631 at paras. 5858-60;-60; Hosannah at paras. 19-32;19-32; R. v. Jha,Jha, 2015 ONSC 1064 at paras. 16-19;16-19; Colpitts v. Nova Scotia Barristers'Barristers’ Society,Society, 2019 NSSC 125125 at paras. 5454-59,-59, affdaff’d 2019 NSCA 45 at paras. 38-40;38-40; R. v. Badakhshan (2014), 118 O.R. (3d) 706 (S.C.J.) at paras. 3, 88-9-9 [RBOA,[RBOA, Tab 3];3]; Khuja at para. 34.34. 156 156 Appellants'Appellants’ Factum at paras. 59ff. 157 157 Appellants'Appellants’ Factum at para.para. 61. 158 158 Personal Information Protection and Electronic Documents Act,Act, S.C. 2000, c. 5 ("PIPEDA").(“PIPEDA“). 159 159 Appellants'Appellants’ Factum at para.para. 60. 160 160 PIPEDA,PIPEDA, s. 3 (emphasis added). 161 Royal Bank of Canada v. TrangTrang,, 2016 SCC 50 ("Trang")(“Trang”) at para.para. 24.

23863611.7 - 30 - organizations to which the Act applies. PIPEDA explicitly authorizes the disclosure of information in the absence of consent but where there is a legitimate reason to do so, such as where disclosure is required to comply with a subpoena, warrant, warrant, court order, or the rules of court, or where permitted by law.law.162 Further,Further, PIPEDA does not apply to personal information collected, used or disclosed for journalistic puiposes.purposes.163

76. BalancingBalancing the legitimate interests of collection,collection, use, and disclose of personal information with privacy interests is not unique to PIPEDA. This dual purpose is also enshrined in legisllegislationation creating a right of public access to government information and related privacy rights in public sector records, records, like the Freedom of Information and Protection of Privacy Act (pippA99).164(“FIPPA”).164 FIPPA, like other public sector access to information statutes, doesdoes not apply to court records.records.165 Rather, the open court principle applies.166

77. The explicit intention to exclude courtcourt records in Ontario can be found in the report of the Commission on Freedom of Information and Individual Privacy.Privacy. EEstablishedstablished in 1977 to improve public information policies and public sector access and privacy legislation, legislation, the Commission created the frameworkframework for FIPPA.FIPPA.167 Its report concluded that the new law:

[S]hould not be applied to the legislative and judicialjudicial branches of government. Both these institutions currently operate under conditions of openness and

162 162 PIPEDA,PIPEDA, ss. 7(3)(c) and (i). This Court has confirmed that PIPEDA "does“does not diminish the powers courts have to make orders, and does not interfere with rules of court relating to the production of records":records”: Trang at para. 24. See also R. v. WardWard,, 2012 ONCA 660 at para. 41. 163 163 PIPEDA,PIPEDA, s. 4(2). 164 164 Freedom of Information and ProtectionProtection of Privacy Act,Act, R.R.S.O. S.O. 1990, c. F.31 ("FIPPA"),(“FIPPA”), s. 1. 165 165 FIPPA,FIPPA, ss. 2 ("institution"),(“institution”), 10, 38(2). See also Office of the Public Guardian and Trustee (Re)(Re),, 2012 CanLII 4529 (ON IPC)IPC).. For a complete list of similar provincial statutes that do not apply to court records, see Schedule A below. 166 166 Ontario (Public Safety and Security) v. CrimCriminalinal Lawyers'Lawyers’ Association,Association, 2010 SCC 23 at paras. 5, 36, 37, distinguishing between government information and information in the "judicial “judicial context".context”. 167 167 See Ontario, Ministry of Government and Consumer Services, Freedom of Information and Protection of Privacy Manual (Toronto: Queen'sQueen’s Printer,Printer, 2018), ch. 1.

23863611.7 - 31 -

publicity which render the application of freedom of information law to the urmecessary.unnecessary.168

FIPPA was thus restricted to "public“public institutions which would normally be perceived by the public to constitute a part of the institutional machinery of ‘government’”`government' and which otherwise lacked a mechanism forfor public accountability through access.169

iv) The relevance of technological change is limited

78. Though the Appellants argue there is a growing need to protect privacy in light of technological change, accessingaccessing courtcourt filesfiles in Ontario requiresrequires physically attendingattending at the relevant courthouse and paying to photocopy each page of the desired file.file. Regarding the potential longevity of material published online,17°170 the analysis of both the benefits171 and the potential risks is outside the issues squarely raised by thisthis casecase.. Indeed, the Appellants'Appellants’ point to Donovan'sDonovan’s book as an example of publicity.publicity.172 However, toto the extent harms arise from such technological changes, legislatures,legislatures, regulatory bodies and courts have found solutions correspondingcorresponding to specific concerns. ForFor example, websites can exclude content from indexing by search tools through useuse of

168 168 Ontario, Ministry of Government Services, Public Government forfor Private People, The Report of the Commission on Freedom of Information and Individual Privacy,Privacy, vol. 2 (Toronto: Queen'sQueen’s Printer, 1980) at 239; Ontario, Ministry of Government Services, Public Government forfor Private People, The Report of the Commission on FreedomFreedom of Information and Individual Privacy,Privacy, vol. 3 (Toronto: Queen'sQueen’s Printer, 1980) at 676 ("MGS").(“MGS”). 169 169 MGS at 676. In a recent case, the principle that court--likelike records are governed by the open court principle, not FIPPA, was affirmed by the Ontario SuperiSuperioror Court. In Toronto Star 2018,2018, Morgan J. declared the application of FIPPA to tribunal adjudicative records to be unconstitutional as a breach of s. 2(b) of the ChartCharter,er, due to the presumption of non -disclosure-disclosure of personal information found in that statute: Toronto Star 2018 at paras.paras. 35, 5757-65,-65, 9595.. See also the Tribunal Adjudicative Records Act, 2019,2019, S.O. 2019, c. 7, Sch. 6060,, which now codifies the presumptive right of access to tribunal adjudicative records in Ontario. 170 170 With respect to which restrictions such as paywalls, including the StStar's,ar’s, need to be considered. 171 171 Including to freedom of expression, see e.g. Crookes v. Newton,Newton, 2011 SCC 47 at para. 36; Jack M. Balkin, "The“The Future of Free Expression in a DigitalDigital Age"Age” (2008-2009)(2008-2009) 36 Pepp. L. Rev. 427 [RBOA,[RBOA, Tab 12].12]. 172 172 Appellants'Appellants’ Factum at para. 72.

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"exclusion“exclusion protocols",protocols”,173 and ccourtsourts in Canada have ordered the de--indexingindexing of offending websites on a world-wideworld-wide basis.basis.174

E. The Appellants'Appellants’ generalized privacy concerns cannot meet the first branch of the DM/Sierra Club test

i) A risk of publicity publicity is not “harm”"harm"

79. Having articulated nothing more than a generalized assertion of privacy, the "risk“risk of harm"harm” the Appellants say arises from the claimed loss of privacy is equally nebulous.nebulous. TThehe Appellants'Appellants’ claim to privacy is all-encompassing-encompassing and absolute,absolute, free from contextual analysis.analysis.175 The claimed loss of privacy falls far short of establishing a serious risk of harm to a public interest —– rather, underlying their argument for sealing is the Sherman Trustees and Beneficiaries'Beneficiaries’ personal interest in avoiding publicity.

80. TheThe information typically contained in estate filesfiles includes the will (if any) and the names,names, occupations,occupations, and addressesaddresses of the estate trustees.trustees.176 In the case of intestacy, thethe name, address, and relationship to the deceased of persons entitled to share in the estate must also be listed, and their age if a minor.177 In this context, this information is not highly sensitive (and(and is likely found in other places, including obituaries).obituaries).178 The relevant court forms also require a statement as to the value of the estate of the deceased; this is not "personal"“personal” to the trustees, who have only a legal interest in the estate and fiduciary obligations, and is a basic piece of information relatingrelating to the interest of the beneficiaries in thethe estate.estate. It is precisely this transference that the legislature has decided should be overseen by open courts.

173 173 A.T. v. Globe24h.comGlobe24h.com,, 2017 FC 114 at para. 76. 174 174 See e.g. Google Inc. v. Equustek Solutions Inc.,Inc., 2017 SCC 34. 175 175 Though they disavow a notion of privacy requiring "total“total secrecy"secrecy” (Appellants'(Appellants’ Factum at para. 77),77), that is exactly what they are advancingadvancing in this case.case. 176 176 Form 74.04 [RBOA,[RBOA, Tab 15];15]; Form 74.07 [RBOA,[RBOA, Tab 16].16]. 177 177 Form 74.14 [RBOA,[RBOA, Tab 17];17]; Form 74.17 [RBOA,[RBOA, Tab 19].19]. 178 178 See Trang at paras.paras. 36, 46.

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81. The Appellants point to names and home addresses and a link between the Sherman Trustees and BeneficiariesBeneficiaries and the Shermans as requiring sealing.sealing.179 They argue that the harm to their privacy is "serious"“serious” because "immediate“immediate and widespread dissemination"dissemination” of this information is "nearly“nearly certain to occur".occur”.180 This complaint about presumed publicity is not a risk of harm;harm; publicity is not innately harniful.harmful.181 If a risk of publicity werewere enough to restrict openness,openness, it would turn the application of the DM/SierraDM/Sierra Club test on its head, shutting the door on the very court proceedings that engage the most significant publicpublic interest. To the contrary, as the jurisprudence make clear, publicity works in service of the public interest and is tied to freedom of expression andand the press.press.

82. While there are situations where publicity could lead to a serious risk of harmharm to anotheranother public interestinterest,,182 this is not such a case.183 The Appellants simply seek to characterize access to court records as an "unnecessary “unnecessary intrusion”,intrusion", relying on the application judge's judge’s belief that the degree of intrusion "has“has already been extreme, and I am sure,sure, excruciating".excruciating”.184 This falls far short

179 179 Appellants'Appellants’ FactumFactum at paras.paras. 13,13, 7474.. See also Responding Factum on Application at para. 6 [RR,[RR, Vol. I, Tab 2].2]. While they refer to "personally“personally identifyingidentifying and other sensitive information”,information", they do nothing more to articulate this vague statement. 180 1813 Appellants'Appellants’ Factum at para. 73. 181 Edmonton Journal at pp. 1361-13621361-1362 (per Wilson J.); The Globe and Mail Inc. v. R.,R., 2017 ONSC 2407 at paras. 20-23.20-23. 182 182 As in Bragg.Bragg. 183 183 In contrast, see the case the Appellants rely on elsewhere, Re Doe (Estate)(Estate),, 2003 ABQB 793, where the Court noted that the risk of publicity about the estate could result in people attempting to take advantage of the sole beneficiary, who had a mental disability and was unableunable to manage his own financialfinancial affairs. 184 184 Appellants'Appellants’ Factum at paras. 19, 74;74; Application Decision at para. 23 [portion omitted by the Appellants emphasized].emphasized]. It is alsoalso notable that, in their original factum, the Appellants argued sealing was necessarynecessary for the "emotional“emotional well-being"well-being” of the ShermansShermans,, though did not provide any further detail or even reference the AB Affidavit for this proposition: proposition: Responding Factum on Application at para. 17 [RR,[RR, Vol. I, Tab 2]. 2]. Elsewhere in the same factum they cite cite the AB Affidavit, see e.g. paras. 3, 4, 6, 7, 15, 29.

23863611.7 - 34 - of the evidentiary standard demanded by the DM/Sierra Club test, or other legal standards of harm based on privacy.privacy.185

83. Furthermore, thethe Appellants'Appellants’ categorical references to the privacy of the Sherman Trustees and BeneficiariesBeneficiaries is vague and unconnected to the information at issueissue.. For instance, what aspect of the information about the trustees (who have only a legal interest in the Estates and who could have declined the role if they did not want to provide the personal information required) is sufficient to meet the necessity branchbranch of the DM/Sierra Club test? The same question arises for the beneficiaries, who are believed to be the Shermans’Shermans' adult children (all of whom are already publicly connected to the Shermans). TThehe Appellants have made no attempt to address how these individualsindividuals can all claim to have identical privacy interests in the circumstances, all of which will be unjustifiably harmed by public access.access. Put simply, and as stated by the ONCA, the Appellants havehave failed to show "something“something more"more” beyond their personal concernsconcerns and sensibilities. This is insufficient to override the strong presumption of court openness.

ii) It is relevant that iinformationnformation is already in the publicpublic domain

84. Given that the Appellants'Appellants’ privacyprivacy claim is focused around publicity, the fact that much of the information has already been published or is otherwise publicly accessible is highly relevant to an analysis of harm they would suffer if the Estate Files were unsealed.unsealed.186 Put another way, if the individuals have already been subject to publicity, the consequences of disclosure would logically be diminished, or eliminated.eliminated. That the identities of the four Sherman adult children are already well known makes it difficult to comprehend what harm they face from any further publicity.publicity.187 In the case of the trustees,trustees, the information sought to be protected —– names,names, addresses and the link to the ShermansShennans188 —– is already publicly available in the Land Transfer Documents,Documents,

185 185 Jones at para. 72. 186 186 WintWinterer at para. 18;18; Canadian Broadcasting Corporation and Others v. HMQ,HMQ, 2013 CanLII 75897 (ON SCSC)) at para. 40. 187 Application Decision at para. 3131;; [New[New EvidenceEvidence]] As the Continued Publicity evidence shows, at least two of the Sherman children have continued continued activities in the public, and a recently published book by Donovan includes many of the Sherman family and friends. Continued Publicity [RR,[RR, Vol. II, Tabs 5-6]5-6] 188 Application Decision at para. 36. Appellants'Appellants’ Factum at para. 74.

23863611.7 - 35 - which were filed by the Estates’Estates' lalawyerswyers two days after the application was heard.189 Far from taking an "all “all-or-or--nothing"nothing” approach to privacy, 19°190 this is a contextual approach that seeks to precisely identify the privacy harm alleged.

iii) Protection of minors'minors’ privacyprivacy not absolute

85. The Appellants also assert that special consideration should be given to protect any minors named in the Estate Files.191 TheyThey appear to suggest that simply by virtue of being a minor, one should be entitled to a sealing order.order. ThiThiss is incorrect.incorrect. AsAs is clear from Bragg,Bragg, thethe same contextual DM/Sierra Club test applies;applies; further, there are many instances where information about minors is accessible in public court files.files.192 The Appellants have failed to articulate a specific risk of harm to minors necessitating a sealing order.

iv) Reasonably alternative measures not considered

86. Even if the Appellants'Appellants’ privacy argument was accepted, it is necessary to consider whether it could be addressed by any reasonably alternative measures. Concerns about specific pieces of information such asas home addresses, if found to be justified, can be addressed in ways far short of total sealing. The same is true regarding the claimed security interest, discussed below.below.

v) Harm to freefree expression outweighs attenuated privacyprivacy interests under the second branchbranch of the DM/Sierra Club test

87. TheThe second branch of the DM/SierraDM/Sierra Club test also requires consideration of the specific circumstances in which an order restricting court openness is sought. Given the generalized assertions of privacy on which the AppellantsAppellants relyrely,, the nature of information in estate files and the fact that at least some of the information appears to be public in other ways,193 the salutary effecteffectss of the Sealing Order are very limited.limited.

88. In contrast, the deleterious effects on freedom of expressionexpression and the press and the open court principle are significant. If what the Appellants have brought to the table in aid of sealing is

189 189 [New[New EvidenceEvidence]] Land Transfer Documents [RR,[RR, Vol. II, Tab 1].1]. 190 19° Appellants'Appellants’ Factum at para. 77.77. 191 191 Appellants'Appellants’ Factum at paras. 9393-95.-95. 192 See e.g. Brown v. Kagan,Kagan, 2018 ONSC 564. 193 193 [New[New EvidenceEvidence]] See e.g. Land Transfer Documents [RR,[RR, Vol. II, Tab 1].1].

23863611.7 - 36 - sufficient, the open courtcourt principle is at serious riskrisk,, the public'spublic’s confidence in the administration of justice will suffersuffer and the media'smedia’s newsgathering abilities will be significantly curtailed. As described above, there is a public interest in ensuring proper oversight of esestatestates and the passing of assets after death, an interest that is increased where significant assetsassets and rights, which will also impact third parties, are at issue. Here thethe cumulative value of the Estates —– believed to be approximately $$55 billion —– is the equivalent of a substantial line item on a provincial budget: enough,enough, for example, to pay for healthcarehealthcare for the entire province of Nova Scotia.194

89. Of course, it may be that only a portion of assets will necessarily be subject to probate. In this regard, therethere is also a public interest in the amount of estate administration tax paid by large estates. If If the entirety of the Estates were taxed, provincial coffers could be entitled to approximately $75,000,000.195 Assuming the estate tax paid is much lower, thisthis could spur public discussion regarding the appropriate taxation of estates.

90. This is not, as the AppellantsAppellants suggest, mere "curiosity"“curiosity” or "media“media interest".interest”.196 The value of the assets being transferred will impact third parties.parties. These funds may start or cease flowingflowing to charities, public interest organizations, lobbyists, and other special interestinterests.s.197 The relationship of the family and the beneficiaries to Apotex,Apotex, which employs thousands in addition to its work on generic medicines, is also relevant.relevant. Further, there have been questions raised about the existence of one or more wills for both Barry and Honey, including information related to potential charitable bequests.198 Taken together, there is a public interest in ensuring appropriate oversight oversight of the Estates and confidence in the courts in discharging their role.role.

194 194 Nova Scotia, Budget 2020-212020-21 (published February 25, 2020) at 41. 195 195 Assuming a 1.5% estate administration tax, applied to $5 billion: Estate Administration Tax Act, 1998,1998, S.O. 1998, c. 34, Sch., s. 2. 196 196 Appellants'Appellants’ Factum at para. 127. 197 197 [New[New EvidenceEvidence]] The Shermans were noted philanthropists —– see, e.g., Barry Will Article [RR,[RR, Vol. II, Tab 3]; 3]; CBCCBC News, "Living “Living in fear but compelled to help: Daughter of murdered billionaire couple goes public"public” published July 14, 2019 [RR,[RR, Vol. II, Tab 5].5]. 198 198 [New[New EvidenceEvidence]] Barry Will Article [RR,[RR, Vol. II, Tab 3];3]; Honey Will Article [RR,[RR, Vol. II, Tab 44].].

23863611.7 -37-- 37 -

91. Furthermore, the context of the deaths of the Shermans must not be forgotten. Murder does not only concern the individual, "but“but the public at large”.large".199 No doubt, in this case, the impactimpact of the murders extends far beyond immediate friends and family. There is great public interest not only in the investigationinvestigation and prosecution of those responsible, but also in understanding the lives and legacy of the Shermans. Finally, information fromfrom the Estate Files is embedded within the police ITOs,200 confirming the relevance of the court files to the police invinvestigationestigation and the link to media and public scrutiny of police conduct.

F. The Appellants'Appellants’ speculative security concerns cannot satisfy DM/Sierra Club test

i) The Appellants cannot satisfy the firstfirst branch of the test

92. AsAs discussed above,201 the necessity branchbranch of the DM/Sierra Club test requires a high evidentiary threshold and does not accept "speculative"“speculative” harms. The Appellants'Appellants’ assertion of risk to the physical safety of the Sherman Trustees and Beneficiaries turns on whether theythey have met thatthat evidentiary threshold.threshold. IItt is common ground that a truetrue serious risk to physical safety is a public interest worthy of protection. The issue here is that the AppellantsAppellants have failed to establish the existence of such a risk and rely solely on a chain of speculative assertions. assertions. Indeed, both the application judgejudge and the ONCA found the Appellants'Appellants’ safety concerns to be "speculative".“speculative”.2°2202

93. The lack of any evidentiary foundation for the Appellants'Appellants’ safety concerns is confirmed by the TPS Evidence, the sworn testimony of Detective Constable Dennis Yim.Yim. He stated on cross-cross- examination in a proceeding to unseal police Informations to Obtain ("ITOs") (“ITOs”) that, to his knowledge, there were no "safety“safety issues”issues" relating to the ongoing sealing of the ITOs, he was not aware of anyone being concernedconcerned with their safety, and the ToronTorontoto policepolice are not worried about

199 199 Murdoch at para. 41. See also Turpin at para. 15; Re Bradley et al. and The QueenQueen,, 1975 CanLII 766 (ON CA); Scott Mair, "Challenging“Challenging Infanticide: Why Section 233 of Canada'sCanada’s Criminal Code Is Unconstitutional"Unconstitutional” (2018) 41:3 Man. L.J. 241 at 264-65264-65 [RBOA,[RBOA, Tab 24].24]. 200 [New Evidence] TPS EvEvidenceidence at 52:2752:27-53:10-53:10 [RR,[RR, Vol. II, Tab 2].2]. 201 201 Above at para. 53. 202 Application Decision at para. 23; Appeal Decision at para. 16.

23863611.7 - 38 - the potential unsealing of the Estate Files.Files.203 While thethe Appellants point to statements of individual concern for safety,safety,204 such concern is not a sufficient basis for a sealing order.order.

94. Even putting aside the TPS Evidence, thethe speculative nature of the Appellants'Appellants’ security concern205 is evident from how it was described by the application judge:

While the risk cannot accurately be estimated, I have little difficulty in concluding that —– at this preliminary stage at least —– the degree of mystery that persists regarding both the perpetrator and the motive raises a realistic prospect of continuing risk to those who may inherit possession or control of some or all of the assets of the victims.206 95. The AppellantsAppellants now argue that this harm was "objectively“objectively discernable",discernable”, citing Bragg.Bragg.207 However, Bragg did not eliminate the evidentiary threshold of the first branch of the DM/Sierra Club test. Rather, itit,, spoke to the extent of evidence required in a particular situation.situation. Though there was no evidence directly from the teenaged appellant as to the harms she faced, this Court considered a number of studies208 and concluded that "common“common sense and the evidence persuade usus that young victims of sexualized bullying are particularly vulnerable to harms of revictimization upon publication".publication”.209

96. This case is very different. The fact that therethere has not been an arrest does not create any logical inference that the Sherman Trustees and Beneficiaries are at risk. If it did, that wouldwould be true of every unsolved violent crime. Indeed, a path of speculative assumptions is required to be traversed: the perpetrator(s)'sperpetrator(s)’s motive continues to exist;exist; the motive has "transported"“transported”21°210 to the SherShermanman Trustees and Beneficiaries;Beneficiaries; and the Estate FilesFiles contain information that would lead to the perpetrators'perpetrators’ next crimecrime.. That all of these assumptions are true is not "objectively“objectively discernable"discernable” —– it is highly improbable, especially in the context of this case where a significant degree of

203 203 [New[New EvidenceEvidence]] TPSTPS Evidence at pp. 47:27-49:10;47:27-49:10; 51:1751:17-52:7;-52:7; 52:852:8-52:26-52:26 [RR,[RR, Vol. II, Tab 2].2]. 204 [New[New EvidenceEvidence]] Appellants'Appellants’ Factum at para. 91, citing the New Evidence Motion materials. 205 205 Application Decision at para. 19. 206 Application Decision at para. 5 207 207 Appellants'Appellants’ Factum at para. 81. 208 208 See e.g. Bragg at para. 26, citing UNICEF Innocenti Research Centre, Child Safety Online: Global challenges and strategies (2011) at 15-16.15-16. 209 209 Bragg at para. 27 (emphasis(emphasis added).added). 210 Application Decision at para. 23.

23863611.7 - 39 - information about about the presumed beneficiaries has already been in the public realm since the murders in December 2017, without further incident.

97. Finally, thethe cases cited by the Appellants do not assist them.them. In X.X. v. YV.,., there was evidence on which the court determined thatthat the plaintiff police officer'sofficer’s "compromised“compromised medical condition, his habits,habits, and information about his family"family” and that this informationinformation "could“could be used to harm or intimidate the plaintiff or his family members."members.”211 The cited passage from R. vv.. Essegiher (where(where the ONCA concluded neither a publication ban nor sealing order was necessary or proportional)proportional)212 is obiter,obiter, but in any event the Court analyzed the specific situation at hand, including that the undercover operative was part of a small group with the "necessary“necessary language facility and other attributes to successfully insinuate themselves into closely-knit-knit alleged terrorist organizations".organizations”.213 There is no comparable connection between the Estate Files, the Shermans’Shermans' murder and the claimed security risk.

ii) Harm to the publicpublic interest outweighs the benefit to speculativespeculative security interests

98. Even if the Appellants' Appellants’ security concerns could meet the necessity test, test, given the speculative nature of the concern (and the new evidence of the lack of security issues known toto police)214 the proportionate benefit of a sealing order is outweighed by the public interest in openness.openness. The incremental benefit to the security of the Sherman Trustees and Beneficiaries would be minimal, at best.

G. No bbasisasis for the Appellants'Appellants’ rrequestedequested rreliefelief

99. The AppellantsAppellants have requested that, in addition to allowing the Appeal,Appeal, this Court extend the duration of the sealing for an extra two years.215 Even if this Court allowsallows the Appeal,Appeal, this would not be an appropriate remedy. Any further sealing request shouldshould be made by the Appellants to the Superior Court with whatever evidence they may have to support continued sealing, and taking into account the changes in circumstances since the original order.

211 211 XX. v.V. Y.Y,, 2011 BCSC 943 at para. 25; see also paras. 55-9-9 and 24. 212 212 R. v. Esseghaier,Esseghaier, 2017 ONCA 970 ("Esseghaier")(“Esseghaier”) at paras. 42-44.42-44. 213 213 Esseghaier at para. 41. 214 214 [New[New EvidenceEvidence]] TPS Evidence [RR,[RR, Vol. II, Tab 2];2]; see also Appeal Decision at para. 15.15. 215 215 Appellants'Appellants’ Factum at para. 130.

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PART IV — COSTS SUBMISSIONS 100. The Respondent submits no costs should be awarded. This appeal engages important public interest issues about the intersection of protections for the open court principle and privacy law. In recognition of that, neither party sought costs in the proceedings below. In the alternative, if this Court decides costs are appropriate, Donovan requests his costs.

PART V — ORDER SOUGHT 101. Donovan requests that the Appeal be dismissed and the Estate Files be unsealed.

PART VI — SUBMISSIONS ON CONFIDENTIALITY 102. The Sealing Order precludes Donovan or the public from seeing the full contents of the Appellants' Record, including the AB Affidavit and even the identity of the affiant. While Donovan requests the record be unsealed in its entirety, to the extent this Court relies on any sealed materials for its decision, it is submitted that descriptions of the materials relied upon should be sufficient for the public to understand the decision.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 9th day of March 2020.

Iris Fischer

S fiye A. Sepp

Ellie Marshall

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PART VII — TABLE OF AUTHORITIESAUTHORITIES Authorities Paragraph(s) Case Law: A. v. Laurent Amyot and Conseil Scolaire Catholique Franco-Nord,-Nord, 2019 73 ONSC 3459 A.B. v. Bragg Communications Inc.,Inc., 2012 SCC 46 54, 71, 72, 82 A.B. v. United Kingdom (Attor(Attorneyney General)General),, 2019 NSSC 289 73 A.G. (Nova Scotia) v. Maclntyre,MacIntyre, [1982] 1 S.C.R. 175 6, 28, 35, 67 A.T. v. Globe24h.comGlobe24h.com,, 2017 FC 114 78 Alderville First Nation v. CanadaCanada,, 2017 FC 631 73 ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board),Board), 2006 36 SCC 4 BMG Canada Inc. v. Doe,Doe, 2005 FCA 193 64 Brown v. Kagan,Kagan, 2018 ONSC 564 8585 Canadian Broadcasting Corp. v. Lessard,Lessard, [1991] 3 S.C.R. 421 31 Canadian BroadcastingBroadcasting Corp. v. New Brunswick (Attorney General)General),, [1996] 24, 28, 29, 30, 3 S.C.R. 480 31, 51, 70 Canadian Broadcasting Corp. v. R.,R., 2010 ONCA 726 31 Canadian Broadcasting Corp. v. The Queen,Queen, 2011 SCC 3 31 Canadian Broadcasting Corporation and OOthersthers v. HMQ,HMQ, 2013 CanLII 51, 84 75897 (ON SC) Colpitts v. Nova Scotia Barristers'Barristers’ Society,Society, 2019 NSSC 125 73 Colpitts v. Nova Scotia Barristers'Barristers’ Society,Society, 2019 NSCA 45 73 Communications, Energy and Paperworkers Union of Canada, Local 30 v. 64 Irving Pulp & Paper,Paper, Ltd.,Ltd., 2013 SCC 34 Crookes v. Newton,Newton, 2011 SCC 47 78 Dagenais v. Canadian BroadcastingBroadcasting CorpCorp.,., [1994] 3 SS.C.R..C.R. 835 3, 22, 50, 52, 53, 54, 56 Daubney v. Cooper (1829),(1829), 109 E.R. 438 at 440 (K.B.) [RBOA, Tab 1] 24 Donovan v. Sherman Estate,Estate, 2019 ONCAONCA 376 5, 9, 12, 15, 16, 59, 9922

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Edmonton Journal v. Alberta (Attorney General)General),, [1989] 2 S.C.R. 1326 29, 31, 44, 45, 64, 67, 81 F.N. (Re)(Re),, 2000 SCC 35 54 Gazette Printing v. Shallow (1909), 41 S.C.R. 339 24 Google Inc. v. Equustek Solutions Inc.,Inc., 2017 SCC 34 78 Hunter v. Southam,Southam, [1984] 2 S.C.R. 145 64 In Re S (FC) (a child),child), [2004] UKHL 47 6 Jane Doe v. Newfoundland and Labrador,Labrador, 2015 NLTD(G) 151 73 Jones v. TsigeTsige,, 2012 ONCA 32 63, 65, 67, 69, 82 Khuja v. Times Newspapers Limited and others,others, [2017] UKSC 49 65, 73 M.E.H. v. WilliamsWilliams,, 2012 ONCA 35 22, 54, 55, 73 McCorkill v. Streed, ExecutorExecutor of the Estate of Harry Robert McCorkill (aka 45 McCorkelMcCorkell),0, Deceased,Deceased, 2014 NBQB 148 Nixon v. WarnerWarner Communications, Inc.,Inc., 435 U.S. 589 (1978) [RBOA, Tab 31 2] Office of the Public Guardian and Trustee (Re)(Re),, 2012 CanLII 4529 (ON(ON 76 IPC) Ontario (Public Safety and Security) v. Criminal Lawyers'Lawyers’ Association,Association, 2010 76 SCC 23 Otis v. OtisOtis,, 2004 CanLII 311 (ON SC) 40 R. v. Badakhshan (2014), 118 O.R. (3d) 706 (S.C.J.) [RBOA, Tab 3] 73 R. v. Dyment,Dyment, [1988] 2 S.C.R. 417 63 R. v. Esseghaier,Esseghaier, 2017 ONCA 970 9977 R. v. GombocGomboc,, 2010 SCC 55 63 R. v. Hosannah,Hosannah, 2015 ONSC 380 6, 73 R. v. Jarvis,Jarvis, 2002 SCC 73 65 R. v. Jarvis,Jarvis, 2019 SCC 10 61, 63, 65 R. v. Jha,Jha, 2015 ONSC 1064 73 R. v. Kossyrine & VorobiovVorobiov,, 2011 ONSC 6081 55

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R. v. Mentuck,Mentuck, 2001 SCC 76 3, 22, 27, 50, 51, 52, 53, 54, 55, 57, 58 R. v. Mills,Mills, [1999] 3 S.C.R. 668 64 R. v. Murdoch,Murdoch, [1988] O.J. No. 4658 (Ont. H.C.J.) [RBOA, Tab 4] 2, 9911 R. v. O’ConnorO'Connor,, [1995] 4 S.C.R. 411 63, 64 R. v. R.R.V. V.,, 2019 SCC 41 64 R. v. Spencer,Spencer, 2014 SCC 43 63 R. v. TseTse,, 2012 SCC 16 64 R. v. TurpinTurpin,, [1990] O.J. No. 1126 (Ont. H.C.J.) [RBOA, Tab 5] 2, 9911 R. v. ViceVice Media Canada Inc.,Inc., 2018 SCC 53 31 R. v. WardWard,, 2012 ONCA 660 75 R. v. WrightWright (1799),(1799), 8 T.R. 293 [RBOA, Tab 6] 24 Re Bradley et al. and The QueenQueen,, 1975 CanLII 766 (ON CA) 2, 9911 Re Doe (Estate)(Estate),, 2003 ABQB 793 82 Richmond Newspapers v. VirginiaVirginia,, 448 U.S. 555 (1980) [RBOA, Tab 7] 24, 30 Royal Bank of Canada v. TrangTrang,, 2016 SCC 50 75, 80 Scott v. Scott,Scott, [1913] A.C. 417 (H.L.) 24, 67 Sierra Club of Canada v. Canada (Minister of Finance),Finance), 2002 SCC 41 3, 24, 50, 51, 52, 53, 54, 57, 60 Smith Estate v. Rotstein,Rotstein, 2011 ONCA 491 66 The Globe and Mail Inc. v. R.,R., 2017 ONSC 24072407 81 Toronto Star v. AGAG OntarioOntario,, 2018 ONSC 2586 24, 51, 52, 77 Toronto Star NewspaperNewspaper Ltd. v. OntarioOntario,, 2012 ONCJ 27 73 Toronto Star Newspapers Ltd. v. OnOntario,tario, 2005 SCC 41 23, 27, 49, 50, 53 Toronto Star Newspapers Ltd. v. Sherman Estate,Estate, 2018 ONSC 4706 9, 11, 12, 13, 82, 84, 992,2, 9944 ValenteValente v. The QueenQueen,, [1985] 2 S.C.R. 673 26 VancouverVancouver Sun (Re)(Re),, 2004 SCC 43 23, 25, 27,27, 52

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WinterWinter v. Sherman Estate,Estate, 2018 ONCA 379379 73, 84 XX. v. Y.Y,, 2011 BCSC 943 9797 Legislation: Bank Act,Act, S.C. 1991, c. 46 42 Loi sur les banquesbanques,, L.C. 1991, c. 46 Bill 161, Smarter and Stronger Justice Act, 2020,2020, 1st Sess., 42nd Leg., Ontario, 36 2019 (first reading December 9, 2019) PL 161, Loi de 2020 pourpour un systemesystème judiciairejudiciaire plusplus efficace et plusplus solide,solide, 1relre sess., 42e léleg.,g., Ontario, 2019 (premiere(première lecture le 9 décembredecembre 2019) Canadian Charter of Rights and Freedoms,Freedoms, The Constitution Act, 1982, 22 Schedule B to the Canada Act 1982 (UK), 1982, c.c. 11 ChartChartee canadiennecanadienne des droitsdroits et libertes,libertés, Loi constitutionnelle de 1982, Annexe B de la Loi de 1982 sursur le Canada (R-U),-U), 1982, c.c. 11 Civil Code of Quebec,Québec, C.Q.L.R. c. CCQ-1991CCQ-1991 37 Code civilcivil du Quebec,Québec, R.L.R.Q. c. CCQ-1991CCQ-1991 Court Reform Statute Law Amendment Act, 1989,1989, S.O. 1989, c. 56 [RBOA, Tab 36 8] Courts of Justice Act,Act, R.S.O. 1990, c. C.43 34, 38,38, 41, 45 Loi sur les tribunauxtribunauxjudiciaires, judiciaires, L.R.O. 1990, c. C.43 Estate Administration Tax Act, 1998,1998, S.O. 1998, c. 34, Sch. 89 Loi de 1998 de l'impôtPimp& sur l'administrationl'administration des successions,successions, L.O. 1998, c. 34, ann. Estates Act,Act, R.S.O. 1990, c. E.21 36, 41 Loi sur les successions,successions, L.R.O. 1990, c. E.21 Freedom of Information and Protection of PrivacyPrivacy Act,Act, R.S.O. 1990, c. F.31 76, 77 Loi sur l'accesl'accès aà l'information et la protectionprotection de la vie privee,privée, L.R.O. 1990, c. F.31 Ontario, Rules of Civil Procedure,Procedure, R.R.O. 1990, Reg. 194 33, 38, 40, 41, 45 Ontario, ReglesRègles de procedureprocédure civilecivile,, R.R.O. 1990, Regl.Règl. 194 Personal Information ProtectionProtection and Electronic Documents Act,Act, S.C. 2000, c. 5 75 Loi sur la protectionprotection des renseignements personnelspersonnels et les documents électroniqueselectroniques,, L.C. 2000, c. 5 Succession Law Reform Act,Act, R.S.O. 1990, c. S.26 42 Loi portantportant réformereforme du droit des successions,successions, L.R.O. 1990, c. S.26 The Surrogate Courts Act,Act, R.S.O. 1877, c. 46 [RBOA, Tab 9] 36

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Tribunal AdjudicativeAdjudicative Records Act,Act, 2019,2019, S.O. 2019, c. 7, Sch. 60 77 Loi de 2019 sur les documents decisionnelsdécisionnels des tribunauxtribunaux,, L.O. 2019, c. 7, ann. 60 Trustee Act,Act, R.S.O. 1990, c. T.23 41 Loi sursur les fiduciaires,fiduciaires, L.R.O. 1990, c. T.23 Secondary Sources: Austin, Lisa M. "Re“Re--ReadingReading Westin"Westin” (2019) 20 Theoretical Inquiries in 68 Law 53 [RBOA, Tab 10] Austin, Lisa M. "Towards“Towards a Public Law of Privacy: Meeting the Big Data 64 Challenge"Challenge” (2015) 71 SCLR (2d) [RBOA, Tab 11] Balkin, Jack M. "The“The Future of Free Expression in a Digital Age"Age” (2008-(2008- 78 2009) 36 Pepp. L. Rev. 427 [RBOA, Tab 12] Black'sBlack’s Law Dictionary,Dictionary, 2nd ed., sub verbo "probate"“probate” [RBOA, Tab 13] 39 Brandeis, Louis D. "What“What Publicity Can Do",Do”, Harper'sHarper’s WeeklyWeekly (December 47 20, 1913) 10 [RBOA, Tab 14] Brown, James Robert Jr. The Regulation of Corporate Disclosure,Disclosure, 3rd ed., 47 2011-122011-12 Supplement (New York: Wolters Kluwer, 2016) Form 74.04, "Application“Application for Certificate of AppointmentAppointment of Estate Trustee 38, 45, 80 with a Will (Individual Applicant)"Applicant)” (updated September 1, 2018), per CJA and Rules,Rules, rr. 1.06, 74.04 [RBOA, Tab 15] Form 74.07, "Notice“Notice of an Application for a Certificate of Appointment of 38, 80 Estate Trustee With a Will"Will” (updated February 1, 2015), per CJACM and Rules,Rules, IT.rr. 1.06, 74.07 [RBOA, Tab 16] Form 74.14, "Application“Application for Certificate of Appointment of Estate Trustee 45, 80 Without a Will (Individual Applicant)"Applicant)” (updated September 1, 2018), per CJA and Rules,Rules, IT.rr. 1.06, 74.14 [RBOA, Tab 17] Form 74.15, "Application“Application for Certificate of Appointment of Estate Trustee 38, 45 Without a Will (Corporate Applicant)"Applicant)” (updated April 11, 2012), per CCJAJA and Rules,Rules, rr. 1.06, 74.15 [RBOA, Tab 18] Form 74.17, "Notice“Notice of an Application for a Certificate of Appointment of 38, 80 Estate Trustee Without a Will"Will” (updated November 1, 2005), per CJACM and Rules,Rules, IT.rr. 1.06, 74.17 [RBOA, Tab 19] Form 74.20, "Certificate“Certificate of Appointment of Estate Trustee Without a Will"Will” 41 (updated November 1, 2010), per CJA and Rules,Rules, rr. 1.06, 74.20 [RBOA, Tab 20] Form 74.21, "Application“Application for Certificate of Appointment as Succeeding 41, 45 Estate”Estate" (updated November 1, 2005), per CJA and Rules,Rules, nrr.-. 1.06, 74.21 [RBOA, Tab 21]

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Freedman, C. D. "Probate“Probate Contests and the New Law of Summary 41 Judgment”Judgment" (2014) 34 Estates, Trusts & Pensions J 199 [RBOA, TaTabb 22] Gavison, Ruth. "Privacy“Privacy and the Limits of the LawLaw"” (1980) 89 Yale LJ 421 63, 68 Gowder, Paul. The Rule of Law in the Real WorldWorld (Cambridge: CambridgeCambridge 41 UP, 2016) [RBOA, Tab 23]23] Law Commission of Ontario, Simplified Procedures forfor Small Estates: Final 40, 42 Report,Report, (Toronto: August 2015) Mair, ScoScott.tt. "Challenging“Challenging Infanticide: Why Section 233 of Canada'sCanada’s 2, 9911 Criminal Code Is Unconstitutional"Unconstitutional” (2018) 41:3 Man. L.J. 241 [RBOA, Tab 24]24] Ministry of the Attorney General, Estates Procedures Manual (Ontario: 40 Ministry of the Attorney General, 2020)2020) [RBOA[RBOA,, Tab 25]25] Nissenbaum, Helen. "Privacy“Privacy as Contextual Integrity"Integrity” (2004) 79 Washington 65 LR 101 Nova Scotia, Budget 2020-212020-21 (published February 25, 2020) 8888 Ontario, Legislative Assembly, Official Report of Debates (Hansard)(Hansard),, 42nd 36, 45 Parl., 1st Sess., No. 143 (February 19, 2020) at 6968 (Hon. Doug Downey) Ontario, Ministry of Government Services, Public Government forfor Private 77 People, The Report of the Commission on Freedom of Information and Individual Privacy,Privacy, vol. 2 (Toronto: Queen'sQueen’s Printer, 1980) Ontario, Ministry of Government Services, Public Government forfor Private 77 People, The Report of the Commission on Freedom of Information and Individual Privacy,Privacy, vol. 3 (Toro(Toronto:nto: Queen'sQueen’s Printer, 1980) Ontario, Ministry of Government and Consumer SerServices,vices, Freedom of 77 Information and Protection of Privacy Manual (Toronto: Queen'sQueen’s Printer, 2018) Oosterhoff, Albert H. "The“The Discrete Functions of Courts ofof Probate and 40 Construction"Construction” (Paper delivered at the Law Society of Upper Canada 19th Annual Estates and Trusts Summit, November 3, 2016) [RBOA, Tab 26]26] Sullivan, Ruth. Statutory Interpretation, 3rd ed (Toronto: Irwin Law, 2016) 36 [RBOA, Tab 27]27] The Hon.Hon. Beverley McLachlin, "Courts,“Courts, Transparency and Public 28 Confidence —– To the better Administration of Justice”Justice" (2003) 8:1 Deakin L. Rev. 1 [RBOA, Tab 28]28] The Oxford English Dictionary, 3rd ed., sub verbo "probate"“probate” [RBOA, Tab 39 29]29] Westin, AlanAlan F. Privacy and Freedom (New York: Ig Publishing, 1967) 63, 68 [RBOA, Tab 30]30]

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SCHEDULE A -– LIST OF FEDERAL AND PROVINCIAL ACCESS TO INFORMATION LEGISLATION THAT DOES NOT APPLY TO COURT RECORDS

Freedom of Information and Protection of Privacy Act, RSBC 1996,1996, c 165, s 3(1)(a)

3 (1)This Act applies to all records in the custody or under the control of a public body, including court administration records, but does not apply to the following: (a) a court court record, a record of a judge of the Court of Appeal, SuprSupremeeme Court or Provincial Court, a record of a master of the Supreme Court, a record of a justice of the peace, a judicial administration record or a record relating to support services provided to the judges of those courts;

Freedom of Information and ProtectionProtection of Privacy Act, RSA 2000, c F-25,F-25, s 4(1)(a)

4(1) This Act applies to all records in the custody or under the control of a public body, including court administration records, but does not applyapply to the following: (a) information in a court filefile,, a record of a judge of the Court of Appeal of Alberta, the Court of Queen'sQueen’s Bench of Alberta or The Provincial Court of Alberta, a record of a master of the Court of Queen'sQueen’s Bench of Alberta, a record of a justice of the peace other than a nonnon‑presiding-presiding justice of the peace under the Justice of the Peace Act, a judicial administration record or a record relating to support services provided to the judges of any of the courts referred toto in this clause; The Freedom of Information and Protection of Privacy Act, SS 1990-91,1990-91, c F-22.01,F-22.01, s 2(2)(c), 5, 24.1

2(2) "Government“Government institution"institution” does not include:

[[…] • -] (c) the Court of Appeal, the Court of Queen's Queen’s Bench or the Provincial Court of SaSaskatchewan.skatchewan.

[[…] • -] 5 Subject to this Act and the regulations, every person has a right to and, on an application made in accordance with this Part, shall be permitted access to records that are in the possession or under the control of a government institution.institution.

[[…] • -] 24.1 Subject to the regulations, a government institution shall establish policies and procedures to maintain administrative, technical and physical safeguards that: (a) protect the integrity, accuracy and confidentiality of the personal information in its possession or under its control; (b) protect against any reasonreasonablyably anticipated: (i) threat or hazard to the security or integrity of the personal information in its possession or under its control; (ii) loss of the personal information in its possessionpossession or under its control; or (iii) unauthorized

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access to or use, disclosuredisclosure or modification of the personal information in its possession or under its control; and (c) otherwise ensure compliance with this Act by its employees The Freedom of InformationInformation and Protection of Privacy Act, SM 1997, c 50, s 4(a);4(a);

4 ThThisis Act applies to all records in the custody or under the control of a public body but does not apply to (a) information in a court record, a record of a judge, master or justice of the peace, a judicial administration record or a record relating to supportsupport services provided to a judge or judicial officer of a court; Act respecting access to documents held by public public bodies and the protection protection of personal personal information, CQLR, c A-2.1,A-2.1, s 3;

The Government, the Conseil executif,exécutif, the Conseil du Tresor,Trésor, the governmentgovernment departments and agencies, municipal and school bodies and the health services and social services institutions are public bodies. For the purposes of this Act, the Lieutenant-Governor,-Governor, the National Assembly, agencies whose members are appointed by the Assembly and every person designated by the Assembly to an office under its jurisdiction, together with the personnel under its supervision, are classed as public bodies. The courts withinwithin the meaning of the Courts of Justice Act (chapter T-16)T-16) are not publicpublic bodies. Right to Information and Protection of Privacy Act, SNSNBB 2009, c R-10.6,R-10.6, s 4(a);

4 This Act does not apply to (a) information in a court record, a record of a judge, a judicial judicial administration record or a record relating to support services providedprovided to a judge or to a court official Freedom of Information and Protection of Privacy Act, RSPEIRSPEI 1988,1988, c F-15.01,F-15.01, s 4(1)(a);

Records to which this Act applies (1) This Act applies to all records in the custody or under the control of a public body, includingincluding court administration records, but does not apply to the following: (a) information in a court file,file, a record of a judge of the Court of Appeal of Prince Edward Island, thethe Supreme Court of Prince Edward Island or the Provincial Court of Prince EdwarEdwardd Island, a record of the Prothonotary, a record of a sitting justice of the peace, a judicial administration record or a record relating to support services provided to a judge;judge; Freedom of Information and Protection of Privacy Act, SNS 1993, c 5, s 4(2)(c);4(2)(c);

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4 (1) This Act applies to all records in the custody or under the control of a public body, including court administration records. (2) Notwithstanding subsection (1), thisthis Act does not apply to (a) published material or material that is available foforr purchase by the public; (b) material that is a matter of public record; (c) a record in a court file,file, a record of a judge of the Court of Appeal, Supreme Court, Family CourtCourt or Provincial Court, a judicial administration record or a record relating to support services provided to the judges of those courts; Access to Information and Protection of Privacy Act, SNL 2015, c A-1.2,A-1.2, s 5(1)(a);

5. (1) This Act applies to all recordsrecords in the custody of or under the control of a public body but does not apply toto (a) a record in a court file, a record of a judge of the Court of Appeal, Trial Division, or Provincial Court, a judicial administration record or a record relating to supportsupport services provided to the judges of those courts; Access to Information and ProtectionProtection of Privacy Act, RSY 2002, c 1, s 2(1);

2(1) This Act applies to all records in the custody, or under the control of a public body, including court administration records,records, but does not apply to the following (a) a record in a court file,file, a record of a judge of a court established by an Act, a judicial administration record, or a record relating to support services provided to the judges of those courts Access to Information and Protection of Privacy Act, SNWT 1994, c 20, 3(1)(a);

3(1) This Act applies to all records in the custody or under the control of a public body, including court administration records, but does not apply to the following: (a) a record made from informinformationation in a court file, a record of a judge of the Court of Appeal, the Supreme CourtCourt or the Territorial Court or a record of a justice of the peace; Access to Information Act, RSC 1985, c A-1,A-1, s 3

government institution means (a) any department or ministry of state of the Government of Canada, or any body or office, listed in Schedule I, and (b) any parent Crown corporation, and any wholly --ownedowned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act; (institution(institution federale)fédérale) Privacy Act, RSC 1985, c P-21,P-21, s 3

23863611.7 - 50 -

government institution means (a)(a) any department or ministry of state of the Government of Canada, or any body or office, listed in the schedule, and (b) any parent Crown corporation, and any wholly --ownedowned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act; (institution federale)fédérale)

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