Days before details of the estate of murdered billionaires Barry and Honey Sherman were to be made public, lawyers for the Sherman family say they will ask the Supreme Court of Canada to seal the files once again.
Last week, in an action brought by the Star and one of its reporters, the Ontario Court of Appeal affirmed the open court principle and ruled that the files should be made public. The files would have been public next Tuesday.
Now that the Sherman family is seeking a hearing from Canada’s highest court, there will be at least a temporary seal on files that appear to contain at least one will, details on how much money and property is at stake, and who the beneficiaries are. Apotex founder Barry Sherman’s wealth has been estimated at $4.7 billion.
In documents filed in court Wednesday, the Sherman family said all information related to the estate must be kept secret to “avoid irreparable harm to the Estate Trustees and the beneficiaries of the estates of Bernard and Honey Sherman, and in order to prevent a serious miscarriage of justice.”
Barry and Honey Sherman, well known philanthropists, were found dead in their home on Friday, Dec. 15, 2017. Police said recently they have a “theory” of the case and an “idea of what happened,” but refuse to say if they have a suspect or suspects, and are still investigating.
The Star asked for the Sherman files to see if a large bequest was heading to a charity and how widely the holdings of the Apotex founder were to be distributed.
A clerk told the Star the Sherman files were sealed with a “protective order” by Superior Court Justice Sean Dunphy, and the protective order was also sealed. The Star then argued in court to have the entire file unsealed. Dunphy upheld his own ruling on the grounds that releasing information would further upset the Sherman family and might put them in danger.
The Star and its reporter appealed that ruling and last week the Ontario Court of Appeal dismissed the Sherman family concerns and ordered the entire file be made public, subject to an appeal.
In a decision by justices David Doherty, Paul Rouleau and C. William Hourigan, the Court of Appeal found that while “the Shermans want to keep family and estate-related matters private” and “they want to grieve in private,” that is not sufficient to seal what is normally a public file.
The court of appeal also took issue with Dunphy’s contention that because the Sherman couple were murdered, the trustees of the estate or the family members of the estate would be in danger if any information was revealed. The Sherman family had provided court with an affidavit that the Court of Appeal noted was not based on any information provided by police investigating the crime and so was “speculation,” not grounded in evidence as the law requires. The affidavit and the identity of its author are sealed. The affidavit warns of “kidnapping and violence” should any information be released.
In one exchange during the court of appeal hearing, Sherman lawyer Timothy Youdan told the panel of three justices that the files should be sealed because the case was not solved and because of the nature of the crime (the Shermans were strangled and their bodies staged beside their pool). One of the justices said that the Sherman lawyer’s problem was that “we see a lot of murders in this court.” The Star further argued that if the Sherman files were sealed it would mean that courts would have to seal all estate files related to unsolved murders, something that would be unworkable.
The Star and its reporter also argued it was generally known the Shermans were wealthy, and it was also generally known who the family members are, since they have appeared at public events, including the memorial service for the Shermans in front of 7,000 people.
The Court of Appeal agreed. “The suggestion that the beneficiaries and trustees are somehow at risk because the Shermans were murdered is not an inference, but is speculation. It provides no basis for a sealing order.”
Now, the Sherman estate trustees have asked their lawyers to seek permission (leave) to appeal to the Supreme Court of Canada. Appearances at the Supreme Court are not easy to get. Of 600 requests for leave to appeal to Canada’s highest court, only about 80 are granted.
First, the Sherman family will need to have a “stay” ordered by the Ontario Court of Appeal, pending news from the Supreme Court of Canada on whether they are allowed to fight the case there. Whether a stay will be granted will be decided in the next two weeks. The entire process will likely take up to six months.
The crux of the case the Sherman lawyers hope to argue at the Supreme Court is this: They say the court of appeal erred by focusing too much on the speculative nature of the affidavit filed to obtain the original sealing order, and did not focus enough on using “reason and logic” to determine if there was physical danger to Sherman trustees and beneficiaries.
Lawyers Youdan and Chantelle Cseh of the Davies firm are representing the trustees (formerly called executors) of the Sherman estate. The trustees on file at the time of the murders included Sherman son Jonathon Sherman; financial adviser Alex Glasenberg; Sherman’s second-in command at Apotex Jack Kay; and Brad Krawczyk, married to one of the Sherman daughters. With the firing of Kay last December by Jonathon Sherman, there appear only to be three trustees remaining.
Sources close to the family say the estate is split evenly between the four children, based on Barry Sherman’s will. Honey Sherman either did not have a will or one was never found. The Sherman holdings are tied up in Apotex and also numerous business and real estate holdings.
Kevin Donovan is the Star’s chief investigative reporter based in Toronto. He can be reached at 416-312-3503 or via email: firstname.lastname@example.org