Education minister threatens to dissolve Moncton-area education council

Education Minister Bill Hogan is threatening to dissolve the Anglophone East district education council if it doesn't stop spending money on its legal fight with the province by the end of Thursday.

Hogan says in a new letter to the council chair that he wants it to confirm in writing by 5 p.m. Thursday that it will ask its lawyers to return any money devoted to the case and not spend any more.

"It is my opinion that the Litigation Expenditure is evidence that the resources of the DEC are being expended in an irresponsible manner," Hogan wrote in the letter to chair Harry Doyle obtained by CBC News.

The district education council has gone to court asking a judge to block Hogan from quashing its policy on sexual orientation and gender identity and to prevent him from dissolving the council.

If the council halted all spending on the case Thursday afternoon, it would in effect stop the case from going forward, before the judge can rule on the merits.

The next court date in that legal action is scheduled for Friday, and the application is scheduled to be heard in June.

It's not clear how quickly Hogan could dissolve the Anglophone East council, because that action itself requires an application to the court.

Hogan's spokesperson did not immediately respond to a request from CBC News for an interview with the minister.

"This case raises the classic question of, can a junior official refuse to carry out an order made by a senior official because the junior official feels that the order is unlawful?" said University of New Brunswick law professor Paul Warchuk.

"I think it is a classic question because there is no absolute answer."

The dispute is over the council's implementation of the province's Policy 713 on sexual orientation and gender identity.

The government updated the policy last year to require school staff to get parents' consent when a student younger than 16 wants to adopt a new name or pronoun at school.

Anglophone East School District education council, led by chair Harry Doyle, adopted its own version of Policy 713 after Hogan changed the provincial policy last year. (Shane Magee/CBC)

Anglophone East argued that this risks violating the rights of students under the Charter of Rights and Freedoms, the Education Act and the provincial Human Rights Act.

The council adopted its own policy on implementing 713, which says school staff "shall respect the direction of the student in regard to the name and pronouns they wish to be called in daily interactions with school personnel and other students."

On March 28, Hogan demanded that the DEC repeal sections of the policy, and when it didn't comply, he declared on April 22 he was repealing them himself — one of the actions the district wants a judge to block.

The minister is also arguing that the council isn't authorized to spend money on the case because its budget is "for educational purposes only."

The district had spent $279,917 on the case as of April 16, according to Hogan's letter. His April 30 letter refers to that as "a misappropriation of public funds."

The Anglophone East council argues that providing a safe, inclusive environment for 2SLGBTQ+ students is part of its educational mandate.

The first page of Hogan's letter of April 22 to Doyle, chair of the Anglophone East district education council. (CBC)

Under the Education Act, the minister must apply to the Court of King's Bench to dissolve a council if the council doesn't comply with provisions of the act "within a reasonable period of time" after being told to do so by the minister.

Retired Université de Moncton law professor Michel Doucet, an expert on constitutional rights in education, said he's not aware of that power ever being used before.

That means it's unclear what threshold Hogan would have to meet to persuade a court to approve the dissolution —  especially when there's already a court action underway touching on the same issues.

Warchuk said the case pits the obligation of district staff to respect Charter rights and values against a government's need to have officials follow its directives.

But the elected status of the district education councils adds a "wrinkle," he said.

"That is not to say they are fully independent of the minister. … [The Education Act] is still clear that the legislature intended for the minister to exercise supervisory power over these councils.

"However, they were clearly intended to have more independence or autonomy than a typical government official. This might weigh in their favour."

Last month, the district's lawyer, Perri Rovan, argued in a court hearing in the dispute that Hogan's approach "indicates a determination not only to have Policy 713 applied as soon as possible, but a determination to prevent Anglophone East from challenging it in court."

In the legislature last fall, Hogan said he was confident the province would prevail on the merits of the court case. He said his personal view was "that we're in the right, we're on the right side of this question, we're on the right side of this issue and the court will rule in our favour."

Hogan's letter demands that Anglophone East hand over its retainer agreement with the law firm it hired to argue the case, Power Law, as well as copies of minutes from education council meetings last June and copies of all invoices from the firm.

It also tells the district education council to instruct the law firm to return all money the council has provided in trust, account for all money it has spent so far, including on the hiring of experts and provide a trust ledger of all council money held in trust by the firm.

Lastly, it asks the council to confirm in writing that it will not spend any more money on the case or any other legal action against the province without written authorization.