The open court principle and Sherman Estate v. Donovan

Friends Who Argue

In this episode, Kristen Duerhammer speaks with Ewa Krajewska and Andrea Gonsalves about the implications of the Supreme Court of Canada’s decision in Sherman Estate v. Donovan, 2021 SCC 25. They discuss the constitutional foundations of the open court principle, the test for discretionary limits on court openness, and situations where court openness would pose a risk to privacy that rises to a public interest dimension of protecting human dignity. Andrea explains how the Supreme Court’s analysis differed from the Ontario Court of Appeal’s analysis and provides examples of subsequent decisions that applied the Supreme Court’s analysis. Ewa shares advice for litigators from her experience in representing one of the interveners at the Supreme Court in the Sherman Estate v. Donovan case.
Ewa Krajewska is a civil litigator and a partner at Henein Hutchison Robitaille LLP. Ewa represented the intervener the Income Security Advocacy Centre at the Supreme Court of Canada in the Sherman Estate appeal on how sealing orders affect those who are vulnerable. She practices in civil litigation, public and administrative law, appellate advocacy, and estates disputes. She is an active member of The Advocates’ Society and is a member of the Education and 10+ Standing Committees.
Andrea Gonsalves is a partner at Stockwoods LLP. Andrea’s extensive experience in litigation and dispute resolution spans a wide range, with a particular focus in civil and commercial litigation, defamation and media law, and administrative and regulatory law. She regularly represents clients in cases before all Ontario and Federal courts, as well as adjudicative tribunals.
Kristen Duerhammer is a partner at KPMG Law LLP, in the areas of tax litigation and dispute resolution. She represents taxpayers before the Tax Court of Canada, appellate and other courts, advises taxpayers on communications with tax authorities, and provides legal risk assessments on potential transactions. Kristen is a member of the Young Advocates’ Standing Committee of The Advocates’ Society.
Land Acknowledgement
The Advocates’ Society acknowledges that our offices, located in Toronto, are on the customary and traditional lands of the Mississaugas of the Credit, the Haudenosaunee, the Anishinabek, the Huron-Wendat and now home to many First Nations, Inuit, and Metis peoples. We acknowledge current treaty holders, the Mississaugas of the Credit and honour their long history of welcoming many nations to this territory.
While The Advocates’ Society is based in Toronto, we are a national organization with Directors and members located across Canada in the treaty and traditional territories of many Indigenous Peoples. We encourage our members to reflect upon their relationships with the Indigenous Peoples in these territories, and the history of the land on which they live and work.
We acknowledge the devastating impacts of colonization, including the history of residential schools, for many Indigenous peoples, families, and communities and commit to fostering diversity, equity, and inclusiveness in an informed legal profession in Canada and within The Advocates’ Society.