Judge says 'chaos' can't continue as province, Anglophone East appear in court

A judge says there needs to be clarity before September over "who's calling the shots" as its school board and the province's education minister clash over a gender identity policy.

"This chaos cannot continue," Court of King's Bench Chief Justice Tracey DeWare said Friday to lawyers representing the sides.

"And by the time students return to classes in September, everybody needs to know who is calling the shots at the Anglophone East School District."

DeWare made the comments during a case management conference in a lawsuit challenging the constitutionality of Policy 713, filed by the the education council against the province and Education Minister Bill Hogan.

The education minister changed the policy last year to require parental consent before using the preferred name or pronoun for students under 16 years old.

The education council's case alleges the policy violates student rights under the Charter of Rights and Freedoms, the Education Act and the provincial Human Rights Act. The council, which oversees 39 schools with 20,000 students in the Moncton region, passed its own policy that says staff should respect a student's wishes.

It's a policy Hogan has demanded be revoked. The district has sought an injunction to prevent Hogan from revoking it and to block him from dissolving the council.

Bill Hogan, New Brunswick's education minister, has said he will seek dissolution of the Anglophone East district education council. (Roger Cosman/CBC)

Hogan had set Thursday at 5 p.m. as a deadline for the district to halt spending on the case. After the district refused, Hogan announced he would seek to dissolve the council.

Under the Education Act, that step requires cabinet approval and an application to the Court of King's Bench where a judge would decide the issue. That application has not yet been filed.

The dissolution request was discussed in court Friday where it became clear it wouldn't be a fast process.

'It's not going to happen in the shadows'

"If the minister decides to pursue the dissolution of the council, of course he'll have to file an application," DeWare said. "That needs to be scheduled by the court, so that's not going to take anyone by surprise."

The judge added, "It's not going to happen in the shadows, or it's not going to happen on short notice."

The judge said if the injunction Anglophone East is seeking isn't granted and the minister applies for dissolution, "then very quickly you can see how we're going to run up against September, and I would hope for all concerned that these issues are resolved by that time."

DeWare spoke after hearing from lawyers for Anglophone East and Hogan about the injunction hearing dates.

Perri Ravon, a lawyer representing the district, said the situation the district finds itself in is "not sustainable" and suggested a faster timeline.

"It seems the minister is taking measures to try to prevent this matter from being resolved by the court," Ravon said.

Clarence Bennett, a lawyer representing the minister, argued there's no increased urgency.

"There is no urgency, there is no 'sky is falling,' because we can't do anything they're suggesting we're doing without coming forward with that application," Bennett said of the dissolution application.

Bennett said the province intends to file a motion by May 15 seeking to dismiss the Anglophone East case.

That motion is scheduled to be heard June 18 and 19, along with the district's injunction request. It's unclear how quickly a decision will be issued after that hearing.

Michel Doucet, a retired law professor, described a dissolution request as 'uncharted waters.' (Marielle Guimond/Radio-Canada)

A retired Université de Moncton law professor said he can't recall a minister seeking to dissolve an elected education council before.

"We're in uncharted waters with what the minister wants to do," Michel Doucet said Friday on Information Morning Moncton.

He said since this process hasn't been used before, it's hard to know what threshold the minister will need to meet for a judge to agree with the request and how it will unfold.

Doucet said the minister's request, once filed, could take weeks or months to be decided by a judge. And then it could be appealed, further delaying a final decision.

"We're certainly not close to a resolution of either of the challenges — the one to Policy 713 or to the motion that the minister will be filing," Doucet said.

Hogan has alleged the education council is "using funds in an irresponsible manner" by using its school funding for the lawsuit.

The education council has argued it's a legitimate use of funds as the case seeks to protect students in its care from a policy the council argues would violate their rights.

In a letter to Hogan Thursday, Anglophone East education council chair Harry Doyle wrote that the Education Act allows an education council to sue and be sued.

"Implicit in that legislative authority is the power to expend funds to sue and be sued," Doyle wrote.

Harry Doyle, chair of the Anglophone East School District education council, said in a letter that since the Education Act allows the district to sue and be sued, it implicitly is allowed to spend money on such cases. (Shane Magee/CBC)

Last year, child and youth advocate Kelly Lamrock issued a report on the changes to Policy 713, saying the changes "violate the provincial Human Rights Act, the Education Act and children's charter rights."

Lamrock also released a proposed version of the policy he said would comply. Anglophone East modelled its policy on Lamrock's proposal.

Policy 713 says education councils "may develop policies and procedures that are consistent with, or more comprehensive than, this provincial policy." Anglophone East has pointed to that as justification for its policy the minister has sought to revoke.

Hogan has also called on three francophone school districts to revoke their policies on gender identity for being at odds with Policy 713.