Province says school district has spent $400K on lawsuit over gender-identity policy
No timeline yet for judge to rule on province's request to dissolve Anglophone East DEC
The New Brunswick government alleges the Anglophone East district education council has spent more than $400,000 on its unsuccessful lawsuit against the province and is hiding information about its spending on the case, according to a court filing seeking dissolution of the elected body.
The application is the latest development in a dispute between the education council overseeing Moncton-area schools and the provincial government over the province's changes to a gender-identity policy last year.
Anglophone East sued the province, alleging changes to Policy 713 violate the rights of students. A judge dismissed the case Friday, a ruling the council has said it will appeal.
Within hours of Friday's decision, the province filed the application in Moncton's Court of King's Bench, asking a judge to approve dissolving the education council. CBC News was only able to review a copy of the filing at the Moncton courthouse Monday.
The application cites the council's refusal to comply with corrective actions demanded by Education Minister Bill Hogan, taking steps to "undermine and defy" corrective actions, and spending education funding on the case against the province.
"The DEC continues to expend its resources in an irresponsible manner and is unable to function due to organization difficulties," the province's application states, asking a judge to order dissolution and move the council's powers to Hogan for up to a year.
No date has been set for the application to be heard by a judge.
No date has been set yet for a judge to hear the request in Moncton court. (Shane Magee/CBC)
Stephanie Patterson, a spokesperson for Anglophone East, said the education council has been notified of the application and will be meeting to discuss its response. Patterson said the council wouldn't be commenting before the meeting. She didn't say when that meeting takes place.
The 10-page application in the court file is accompanied by lengthy affidavits and documents showing the evolution of the dispute.
Last year, the province updated Policy 713 to require that school staff seek the consent of a parent when a student under age 16 wants to use a new name or pronoun informally at school.
The policy change prompted rallies and protests in various cities, a legal challenge by the Canadian Civil Liberties Association and a revolt by six Progressive Conservative MLAs.
After the province's changes, the education council 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."
In November, the education council voted to sue the province over Policy 713. The council argued implementing Policy 713 could violate the Charter of Rights and Freedoms, the Education Act and the provincial Human Rights Act.
After notifying the province of the decision to sue, the education minister changed a policy that would have allowed its legal costs to be covered by the province.
Earlier this year, a series of letters exchanged between the education minister and council chair Harry Doyle included Hogan demanding the council revoke portions of its policy, and then threatening to dissolve the council.
The threats were followed by Anglophone East filing its lawsuit, which sought injunctions to prevent the minister from taking those steps as it prepared its broader legal challenge of Policy 713.
Hogan then revoked the education council's policy, and the council subsequently adopted a nearly identical version.
Application cites defiance of minister, 'wasted' legal costs
"This was a clear action taken to circumvent the minister's authority under the act," the dissolution application says of the move.
In a series of decisions culminating Friday, the education council's case was dismissed.
"These costs were all wasted on an action and injunction that were dismissed in their entirety," the province alleges in its dissolution application, referring to the education council's spending on lawyers.
The document states the education council has spent "at least $408,374.66 in legal fees and disbursements" on the case. Anglophone East is funded by the province.
The two firms representing the council are Ottawa-based Power Law and Murphy Collette Murphy in Moncton.
Perri
Ravon, left, and Mark Power, right, are lawyers representing the
Anglophone East district education council and are shown leaving the
Moncton courthouse in May. (Pascal Raiche-Nogue/Radio-Canada)
"The DEC will not advise the minister the full extent of the legal fees incurred or the total owing to Power Law for their failed proceedings," states the application filed by lawyers with the firm Stewart McKelvey on behalf of the province.
A spokesperson for the province did not answer a question about how much the province has spent so far in the fight with the education council.
Hogan in June appointed accountant Christopher Neal as an investigator under the Education Act to examine the council's spending on the legal case.
A lawyer representing the education council declined to provide the information sought, saying it was protected by solicitor-client privilege.
"The DEC has failed or refused to produce any information or materials related to the district litigation requested by the investigator," the application states.
Under the Education Act, a judge can approve or deny the application following a hearing.
If approved, the powers of the education council will go to the minister for up to a year, until an interim council is appointed or the next regular election takes place.
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Education council rejects minister's latest bid for documents
District lawyer says handing over records in Policy 713 case would violate solicitor-client privilege
The Anglophone East district education council is rejecting a new attempt by Education Minister Bill Hogan to get his hands on financial records and documents about its hiring of lawyers to fight changes to Policy 713.
In a letter Monday, the council argued that the information is protected by solicitor-client privilege.
"All of the documents … are confidential communications between a client and its solicitor for the purpose of getting legal advice or representation," one of the council's lawyers, Darren Blois, wrote.
"On behalf of the DEC and AESD, therefore, I am asserting [solicitor-client privilege] over all of the documents enumerated in your letter of June 17, 2024, and refusing to produce the requested documents to you."
Education
Minister Bill Hogan has threatened to dissolve the Anglophone East
district education council over its spending of tax dollars on the
dispute over Policy 713, but he has yet to file the required court
application. (Jacques Poitras / CBC)
That letter from Hogan told the DEC he was appointing Christopher Neal, a Saint John chartered accountant, to "investigate and inquire into the financial condition connected with the management, administration and operation" of the district.
The appointment gives Neal the powers of a commissioner under the provincial Inquiries Act, including the power to summon witnesses to answer questions under oath and to order them to turn over documents.
Hogan has threatened to dissolve the council over its spending of tax dollars on the dispute over Policy 713, but he has yet to file the required court application.
The government updated Policy 713 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 that reflects their gender identity.
Anglophone East argued this violates the rights of 2SLGBTQ+ students under the Charter of Rights and Freedoms, the Education Act and the provincial Human Rights Act.
In a written statement, Hogan did not respond to a question from CBC News about whether he appointed Neal to gather information for a possible court application to dissolve the council.
'All
of the documents … are confidential communications between a client and
its solicitor for the purpose of getting legal advice or
representation,' one of the Anglophone East district education council's
lawyers, Darren Blois, wrote in a letter. (Shane Magee/CBC)
"The DEC for Anglophone School District-East is spending hundreds of thousands of dollars meant for educational purpose on lawyers from outside the province," the statement said.
"Under the Education Act, the Department has the authority to look into the finances of a school district to ensure that it is spending the money responsibly as budgeted and as required under the Act."
Anglophone East spokesperson Stephanie Patterson said no one from the council would do an interview.
"At this time, we are unable to provide comment," she said in an email.
Hogan wants invoices, retainer agreements, witness fees and any documents about the district seeking bids for the legal work.
The two firms representing the council are Ottawa-based Power Law and Murphy Collette Murphy in Moncton.
Last
week, Court of King’s Bench Chief Justice Tracey DeWare heard arguments
on whether the council has standing to seek an injunction blocking the
changes to Policy 713. (Shane Magee/CBC)
In April, the Anglophone East council refused a similar request from Hogan for information about its hiring of the law firms, citing the same solicitor-client privilege.
The new request carries greater potential consequences if it's refused.
Under the Inquiries Act, someone who refuses to answer a commissioner's questions or turn over requested documents can be jailed for up to 30 days.
After Hogan's changes to Policy 713 last year, the Anglophone East council adopted its own policy on implementing them.
It 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."
Hogan says this doesn't comply with the provincial policy and has told the district he was repealing it.
The district education council applied for an injunction to block the implementation of the provincial changes, arguing a council can't be put in a position of violating students' rights.
Hogan argues the council can spend money from its budget "for educational purposes only" and must stop spending on the lawsuit or face dissolution.
Last week Court of King's Bench Chief Justice Tracey DeWare heard arguments on whether the council has standing to seek an injunction blocking the changes.
If she rules it does, she'll hear arguments in July about which expert witnesses and evidence can be admitted in the case.
The main hearing would then take place in September.
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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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