The Supreme Court of Canada recently answered this question: yes but only in very limited circumstances.

In the case of Sherman Estate v. Donovan, a prominent couple was found dead. Their death generated intense public interest. The estate trustees sought a sealing order of the probate files to avoid press scrutiny. The application judge sealed the files. The Court of Appeal of Ontario unanimously allowed the appeal and lifted the sealing order.  The Supreme Court of Canada (“SCC”) dismissed the appeal.  The risks to privacy and physical safety were not determined to be sufficiently serious to merit a sealing order of the probate files.

Court proceedings are presumed to be open to the public.  The SCC explained that the openness of the courts is “essential to the proper functioning of Canadian democracy.” Therefore, there is a strong presumption that court openness will prevail in a request for a sealing order. But there are limits.

Court openness will be limited to protect other public interests.  A 3-prong test was established by the SCC.  Open court will be limited if:

1. “Court openness poses a serious risk to an important public interest.”
2. The limit sought is necessary to prevent this serious risk to this important public interest because other measures will not prevent this risk.
3. “The benefit of the order outweighs its negative effects.”

This is a stringent test. The “risk” and “seriousness of the risk” will be determined based on the circumstances. However, the “public interest” and “importance of the public interest” go beyond the interests of the parties involved. There is no exhaustive list of important public interest but “privacy” and “protecting a person from physical harm” have been determined as important public interests.

In Sherman, the SCC determined that although there was a risk to the important public interest of privacy, the risk was not serious. The SCC went further to say that even if the estate trustees had shown that there was a serious risk, they would not have succeeded on the last part of the test.  A publication ban would have been sufficient to prevent the risk and would have been less constraining than a sealing order.

In personal injury actions, the injured plaintiff often seeks a sealing order when a settlement is submitted for approval by way of a motion to the Superior Court of Justice.  The sealing of the motion file is requested to prevent the defendant insurer from obtaining information shared between the injured plaintiff and his lawyer. This information can include the lawyer’s value of the claim or the weaknesses of the case. This information is privileged. If the settlement is not approved by the court and the court action continues, the disclosure of the privileged information could be detrimental to the pursuit of the claim. Will this be sufficient to meet the 3-prong test established by the Supreme Court of Canada?

This is a difficult question to answer.  The confidentiality between a lawyer and his client will likely be deemed as an “important public interest”. But will the disclosure of the information shared by a lawyer with a client be deemed to pose a “serious risk” to this public interest?  If so, will there be a less constraining option to limit court openness than a sealing order?  Only time will tell as the courts apply the Sherman test to limit court openness.

If you have questions about a personal injury matter, please contact one of our lawyers at Burn Tucker Lachaîne P.C. for a free initial meeting.

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