School district to appeal ruling that it cannot challenge N.B. gender-identity policy
Anglophone East district education council alleges provincial policy is violating students' rights
A school district that launched a legal challenge to New Brunswick's gender-identity policy says it will appeal a recent court ruling that effectively quashes its action.
The Anglophone East district education council took the province to court over changes to Policy 713, which requires a student to get parental permission to use a different name or pronouns in schools, arguing it violates the Charter rights of students.
But Court of King's Bench Chief Justice Tracey DeWare ruled on Friday the council lacks standing, or the ability to bring the case forward. She said the concerns may be better addressed in a separate lawsuit by the Canadian Civil Liberties Association.
On Saturday, the council issued a statement that it had met and unanimously decided to appeal the ruling.
"Pursuing this appeal is a crucial step in defending local governance in the education sector, in resisting the pitfalls of centralization in Fredericton, and in ensuring that our voices are heard and that our mandate is upheld," it said in a news release.
"The DEC remains dedicated to advocating for the best interests of our students, educators, and the broader community."
CBC News has sought comment from the province and is awaiting a response.
Education Minister Bill Hogan has said the council's lawsuit is a misuse of government funding. (Ed Hunter/CBC)
After Friday's ruling, the province said it made a court filing to begin the process of dissolving the council. Education Minister Bill Hogan has said that's necessary because the council's lawsuit is a misuse of government funding.
It is not yet clear when a judge will rule on that request.
N.B. judge rules against school district in challenge to gender-identity policy
Anglophone East district education council alleged gender-identity policy violates rights of students
A New Brunswick judge has ruled against a Moncton-area school district in its lawsuit against the provincial government that alleged changes to a gender-identity policy violate the rights of students.
Court of King's Bench Chief Justice Tracey DeWare ruled the Anglophone East district education council lacks standing to argue that Policy 713 violates Charter language rights, life and liberty rights and equity rights.
Standing is a legal term for the ability to bring a case to court.
"This Court has concluded that none of the Plaintiffs' individually nor collectively have standing, either as of right or public interest standing to advance a claim that the adoption and implementation of Policy 713 infringes their Section 16.1 Charter rights," DeWare says in her 67-page decision issued on Friday.
The plaintiffs in the case were the education council, chair Harry Doyle and member Dominic Vautour.
Hours after the decision was issued, the province said it had filed paperwork in court asking a judge to dissolve the education council. CBC News has yet to receive a copy of that paperwork.
Judge says issues can be decided in CCLA case
The judge did not rule on the substance of the education council's allegations, though DeWare wrote she accepts "there exists a serious justiciable issue" regarding the policy's potential impact on gender diverse youth.
The judge ruled that a separate case over Policy 713 filed by the Canadian Civil Liberties Association would instead be a more appropriate means for deciding the questions the council raised.
"In the present matter, there are realistic and alternative means which favour a more efficient and effective use of judicial resources," DeWare wrote.
Hearings in the civil liberties case took place Thursday and Friday in Burton, outside Fredericton.
Council expresses 'shock and disappointment'
In a statement, the education council expressed "shock and disappointment" over the decision. The council did not provide an interview.
The statement did not directly say if the district education council would seek to appeal the decision but said it will "meet to consider its options."
"Despite this setback, the Anglophone East DEC remains committed to advocating for policies and practices that support all students," the statement said.
"The DEC will continue to explore all available avenues to ensure that schools remain places where every student can thrive without fear of discrimination or exclusion."
The province did not provide an interview about the decision.
The judge ruled that an education council member, Dominic Vautour, can still sue over whether the policy violates his freedom of expression. However, Vautour would have to file a new case over that issue.
Education Minister Bill Hogan has said he will seek to dissolve the education council over its spending on the case. (Jacques Poitras / CBC)
The case centred on changes Education Minister Bill Hogan made to Policy 713 last year.
The province updated Policy 713 to require school staff to seek the consent of a parent when a student under 16 wants to use a new name or pronoun informally at school.
The education council has gone to court challenging the policy, arguing it violates the rights of students.
The district alleged the changes to Policy 713 violated the Charter rights of gender diverse students, specifically rights to equity and to life, liberty and security of the person. It also alleged the policy violates the right to freedom of expression for teachers and other school personnel.
The case also alleged the policy violates Section 16.1 linguistic rights.
The judge's ruling calls the education council's interpretation of that section in the case "beyond reason" and "quite novel."
"There is absolutely nothing in Policy 713 that deals with language, impacts the language rights of gender diverse students nor school personnel," DeWare wrote.
"Gender diversity is certainly an element of culture in a general sense; however, it is not, in the circumstances of this policy, connected to language."
The provincial government has begun the process to dissolve the education council, with the minister citing its spending on the case as a misuse of education funds.
It's unclear when a judge will consider and rule on the dissolution request.
Read the judge's full decision here:
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Judge in gender-identity lawsuit 'doubts' it's legal for province to withhold records
Justice Richard Petrie says he will check N.B. government documents before accepting confidentiality claim
A judge has decided to review several documents before he decides whether it's legal for the New Brunswick government to withhold them from the court and the public.
In the case against the province's school gender-identity policy, Justice Richard Petrie said Friday he will review briefing notes and emails to make sure the province is not "over-claiming" confidentiality.
The Canadian Civil Liberties Association is challenging the new changes to Policy 713, which now requires parental consent before school staff can use a student's chosen name and pronoun if they're under age 16. The association alleges this policy violates children's Charter and human rights, and is asking the judge to quash it.
Before they can begin arguing the case, the province must first produce all the documents the minister reviewed when making changes to the policy.
Over the last three days of hearings, the association and the province disagreed over which documents are relevant and which documents should be withheld for confidentiality reasons.
The province says nine documents — five briefing notes and four emails — are relevant to the case but should be withheld from the judge and the public because of "public interest immunity."
The province's lawyers argued the documents were prepared for the minister before he had a meeting with cabinet. Revealing them would harm the public interest because cabinet members are supposed to feel safe enough to have honest arguments about issues, lawyer Steve Hutchison said.
"If this is released … ministers and former ministers would be put in front of a microphone and asked, 'What was your position?'" Hutchison has said previously.
But changes to the policy were not a cabinet decision, the civil liberties group argued, so they should not be protected as if they were. Association lawyer Sheree Conlon also said this kind of immunity should not be used to "shield" politicians from scrutiny.
"Just because a policy is controversial does not mean the government's decision-making process should be shielded," she said. "Public scrutiny is crucial to our democracy."
Province withholding document already made public
Petrie said several issues raise doubts about whether the province is inappropriately withholding documents.
One of the briefing notes it wants to withhold was written to the premier in 2019. CBC News received this briefing note as part of a right to information request that sought all records "related to the decision to launch a review into Policy 713."
CBC News published the briefing note as part of an investigation. The briefing note speaks generally about the need for the policy and how its development started. In an affidavit submitted to court, public servant Lisa Lacenaire-McHardie said the briefing note was released in error and that it should have been confidential.
Justice Petrie said he doesn't see why.
"Having reviewed that document … I just don't see anything in it that's obvious to me about this issue," he said. "It does raise either that uncertainty, or maybe an over-claiming of public interest immunity. I have not concluded that, but it at least raises some doubt."
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In its submissions, the province also said the briefing notes were made to give advice to the premier and cabinet. However, Hutchison said that was a mistake and they were not actually prepared for cabinet, rather for the minister. Petrie said he accepts that it was a mistake, but "it does not add to my confidence."
Petrie said the province also did not provide the documents related to the June 8 amendments of the policy until the second day of hearings, when it was challenged by the association, and he said that adds to his concern about "how this vetting process had gone."
Petrie asked the province to go through the documents one more time and decide whether it wants to suggest redactions instead of withholding the entire document.
Regardless of what the province decides, Petrie will review the fully unredacted documents and decide in the coming weeks whether they should be fully or partly revealed.
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N.B. cabinet OK's seeking dissolution of education council over gender identity policy
Next step for education minister requires going to court to ask judge to approve dissolution
The New Brunswick government has begun the formal process to dissolve a Moncton-area district education council over a gender identity policy.
The process outlined in the Education Act requires cabinet approval before going to court to ask a judge to approve dissolution.
A May 9 order-in-council reveals cabinet gave that approval to go to court. An order-in-council outlines a decision by cabinet and is signed by the lieutenant governor.
The order in council grants Education Minister Bill Hogan the authority to file an application in the Court of King's Bench seeking to dissolve the Anglophone East district education council (DEC).
While Hogan said May 2 that he would begin the process for dissolution, it wasn't clear until the order-in-council was recently published that cabinet had given the go-ahead.
A search of the province's online court registry suggests the court filing has yet to happen.
Harry Doyle, chair of the education council, told CBC News he had not been notified of the step by cabinet prior to being contacted by news media Thursday.
"I'm not surprised, I guess I am disappointed," Doyle said of the move, referring further comment to lawyers representing the education council.
Harry Doyle, chair of the Anglophone East district education council, says he's disappointed but not surprised by the move. (Shane Magee/CBC)
In a statement issued Thursday, the education council said it has yet to receive any notice of a court filing and that the council remains "fully operational."
"If and when the minister chooses to act on the May 9, 2024 authorization, the DEC is prepared to defend its integrity through all available channels," the statement says.
"The DEC remains steadfast in its mission to provide quality education and support to all students within the Anglophone East School District."
CBC News has requested comment from the province and the district education council's lawyers.
Hogan had threatened to dissolve the education council, which oversees the school district, over its spending on a legal challenge of the province's changes to Policy 713, which deals with sexual orientation and gender identity.
Last year, the province updated Policy 713 to require school staff to seek the consent of a parent when a student under 16 wants to use a new name or pronoun informally at school. The education council has gone to court challenging the policy, arguing it violates the rights of students.
The education council has approved a policy implementing Policy 713 that 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."
The district's statement Thursday said its legal challenge would continue.
The education council's legal challenge initially sought to block Hogan from seeking dissolution, though a judge rejected that request in a ruling earlier this year.
The legal challenge is one of two moving through court over the province's changes to Policy 713. A separate case filed by the Canadian Civil Liberties Association has been filed in Fredericton.
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