An article yesterday in the Toronto Star reports that the Ontario Court of Appeal recently heard a “secret” appeal in a criminal matter.  The decision from the appeal, available here, was heavily redacted, including the names of the parties, lawyers, and trial judge.  The unredacted reasons are sealed and not accessible by the public.  The article commented that the level of secrecy is “highly unusual”, as the contents of most court files are a matter of public record. Typically, the public nature of court files extends to probate files.  For this reason and others, secondary wills are often made and can include terms that a testator may not want to become publicly available through the filing of the probate application, as a probate application is made in respect of the primary will alone.

It is notoriously difficult to have a court file sealed relating to probate or estate litigation in Ontario and other parts of Canada.  Redaction of court documents available to the public to remove identifying information, as recently seen in the Court of Appeal decision referred to above, is far from standard.  

The public nature of the court record highlights one of the benefits of resolving matters early and outside of the court process.  Documents exchanged in estate litigation are sometimes used as an opportunity to air dirty laundry and are available to anyone who goes through the effort of pulling them from the court file.  We have all had clients who have been displeased with a judge’s comments about them, which often become available through a quick Google search after a hearing.

Mediation is a mandatory step in proceedings commenced on the Toronto Estates List. This does not mean, however, that mediation is not a suitable option prior to the commencement of proceedings. In some circumstances, early mediation or other forms of ADR (sometimes considered FDR as I reviewed in another recent blog) can offer benefits not only in terms of costs, control, and timeliness relative to litigation, but also of maintaining the privacy of the parties to the dispute and details of their family lives.

Thank you for reading.

Nick Esterbauer