The cousins of the late Barry Sherman have lost their bid to have Canada’s highest court hear a final appeal on their bid for $1 billion of the pharmaceutical titan’s fortune.

In a decision handed down Thursday, the Supreme Court of Canada denied a leave application by Kerry Winter, his two siblings and the widow of the fourth. Spearheaded for years by Winter, the cousins had claimed that Sherman cheated them out of one-fifth of the Apotex-founder’s wealth.

“Disappointed, of course,” Winter told the Star after hearing the news.

Meanwhile, the Supreme Court of Canada has delayed until June the hearing of the Sherman estate’s challenge of a ruling by the Ontario Court of Appeal to unseal the will and estate files, following a successful application by the Star and one of its reporters that ruled them open to the public.

Barry and Honey Sherman were among Canada’s wealthiest couples and major charitable donors. They were found murdered in their home in Toronto on Dec. 15, 2017, more than two years ago. Toronto police say the investigation into the double murder is active and ongoing. Their bodies were discovered in their basement beside an indoor pool roughly 36 hours after they were killed.

To be heard by Canada’s highest court, permission or “leave” must be granted by the court and only a fraction of requests are granted. Winter had sought that leave after the Ontario Court of Appeal affirmed the decision by a lower court to toss out his case against Sherman. As is normally the situation with leave applications, the Supreme Court of Canada gave no reasons for denying to hear the case.

This has ended a battle by Winter and his cousins that has its origins in the 1960s. The “Winter cousins” as they are sometimes called, lost their parents at a young age. Their father, Louis Winter, was a pioneer in the generic pharmaceutical business. The young Barry Sherman worked for and was mentored by his “Uncle Lou” in his Toronto business, Empire Laboratories.

The cousins alleged in a series of court proceedings beginning in the 1990s that Barry, who bought and then sold Empire, owed a financial duty to his four cousins, which they said translated into one-fifth of his estimated $5 billion wealth.

The key element of the argument was an option agreement that was part of Sherman’s purchase deal of Empire they discovered which, they said, proved they were deserving of the wealth. Sherman’s lawyers countered that the option had never taken effect because it stipulated that for it to take effect, the cousins had to be over 21 and have worked at Empire for a period of time.

Winter and his cousins lost their case at a variety of court hearings, including one not long before the murders (along with a court order that the Winters pay $300,000 in legal costs to Sherman). That gave rise to suspicions that Kerry Winter was involved in the murders, a belief helped on by Winter himself, who said he at times fantasized about murdering Barry Sherman. Winter also told the Star and other media that Sherman had, in the 1990s, asked him to arrange a “hit” on Sherman’s wife Honey.

Toronto police interviewed Winter as part of their investigation. Winter has told the Star he had nothing to do with the murders and part of him, he says, still believes it was a murder-suicide, an early theory the police eventually discounted.

The $300,000 legal fee award made by the Ontario Superior Court was on hold pending the Winter leave application.

In a previous interview, Winter told the Star that Sherman had been generous to the cousins over the years (Sherman gave them at least $15 million before turning off the tap when the Winter cousins sued) and there were many things he liked about Sherman. However, he said he believed they were treated badly by their cousin and he wished that Sherman had in some way acknowledged the contribution their father made in their lives.

“I think, more than money, what would have made me happy would have been if he acknowledged my father and mother’s contribution to his life and donated money to create the Lou and Beverley Winter wing at some hospital,” Winter said in an earlier interview with the Star.

In the case involving access to the Sherman estate documents and Barry Sherman’s will, the Star sought access to the file in mid-2018. Normally, estate files are public in Ontario but a Star reporter was told at the court counter there was a “protective order” on the file. That began a lengthy court battle, which the Star and its reporter ultimately won at the Ontario Court of Appeal.

The Sherman estate was granted leave to appeal to the Supreme Court of Canada and that case was to be heard in Ottawa on March 26, but is now on hold due to the global pandemic which has shut many institutions, including the Supreme Court of Canada.

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In a statement regarding the case and two others that were to be heard next week in Ottawa, the Supreme Court said the hearings will be tentatively rescheduled for June, at a time when hearings can be attended in person.

The court wrote in the statement: “Out of respect for the open courts principle, the press and media will be allowed to attend the hearings in person.”

Kevin Donovan is the Star’s chief investigative reporter based in Toronto. He can be reached at 416-312-3503 or via email: kdonovan@thestar.ca

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