A judge says there needs to be clarity before September over "who's calling the shots at the Anglophone East" 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.

The Anglophone East district education council has rejected the education minister's demand that it stop spending money on a lawsuit against the government over gender-identity policies.

In a letter to Bill Hogan, chair Harry Doyle says the council will only agree to the demand if the minister promises in writing to not "repeal or remove" the district's policy, which he has already said he is repealing.

Hogan had demanded the council comply with his demands by 5 p.m. Thursday or else he would go to court himself to dissolve the council.

Doyle rejected the ultimatum in his letter.

Provincial law "provides that locally elected DECs, responsible to their electorates, decide how to implement public education in their respective school district subject to the Education Act," he wrote.

'No options,' minister says

Hogan issued a statement about an hour after his deadline saying the DEC had left him "no options but to commence the process for dissolution" of the council.

His statement accused Anglophone East of "diverting almost $300,000 from classrooms to Ontario-based lawyers to file a motion to fight the rights of parents to be informed about their kids under 16." 

The minister must apply to the court to dissolve the DEC and it's unclear how quickly that might happen.

Harry Doyle, chair of the Anglophone East district education council, wrote in a letter to Bill Hogan the council will only agree to his demand if the minister promises in writing to not 'repeal or remove' the district’s policy. (Shane Magee/CBC)

It is the latest escalation in an extraordinary legal and constitutional confrontation between the Moncton-based district education council and the minister over the province's Policy 713.

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 argued that that would violate 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."

It has gone to court asking for a judge to block any attempt by Hogan to repeal the policy or dissolve the council.

Hogan argues the council can spend money from its budget "for educational purposes only" and must stop spending on the lawsuit.

This week he threatened to dissolve the council if it didn't comply.

Policy undermines 'public education,' says chair

Doyle argues in his letter that Anglophone East determined "that Policy 713 would undermine public education and reduce educational outcomes, and is inconsistent with the DEC's responsibility to protect its students from harm."

The letter also argues that the Education Act allows the council to sue the province and does not prohibit it from using its budget to do so.

Separately from Thursday's letter, the council has also now outlined its constitutional arguments in its broader legal challenge of the province's changes to Policy 713.

"The provisions single out gender-diverse students, a uniquely disadvantaged minority group, and exacerbate the disadvantage they face," says the statement of claim filed late Wednesday in Court of King's Bench.

It asks the court to declare last year's changes "of no force and effect."

Students from a couple of high schools rallied in Quispamsis over changes to Policy 713 after they were announced almost a year ago. (Roger Cosman/CBC)

A hearing on the council's injunction application is scheduled for June, but the main thrust of the case — the substance of its legal arguments for quashing the province's changes to Policy 713 — would only be heard later. 

Forcing school staff in the district to address students with names and pronouns that don't reflect their gender identity would be "contrary to its values and practices," says the statement of claim filed late on Wednesday at Court of King's Bench in Moncton.

"They force Anglophone East to participate in practices that will further disempower and harm its more vulnerable members rather than contribute to their success and enhance the vitality of the community." 

The claim cites the Charter's Section 7 on "life, liberty and security of person," Section 15 on equality rights, and Section 16.1 on New Brunswick's dual education system.

That section, which applies uniquely to this province, defines the rights of the anglophone and francophone communities to "distinct educational institutions … for the preservation and promotion of those communities."

Anglophone East argues that the changes to Policy 713 "frustrate" its ability to "promote the vitality" of the anglophone community because they discriminate against 2SLBGTQ+ students who are part of that community.

The government's lawyer in the case has already signalled that he would seek to have the council's entire case thrown out once the statement of claim was filed. 

"There is an adequate alternative remedy that's been ignored by the applicants in this case," Clarence Bennett told a hearing on April 17.

The Education Act gives councils 30 days to ask a court to review a "corrective action" taken by a minister.

That is not the process that Anglophone East is using in its case. 

Hogan also issued a statement late Wednesday responding to recent comments by Michel Côté, chair of the Francophone South district education council.

Côté told Radio-Canada and CBC News that his council was spending a majority of its time over the last two years "putting out fires" set by the province over decision-making powers and over Policy 713 — to the detriment of focusing on classroom education.

"It is unfortunate that the Chair of the District Education Council feels that way," Hogan said in his statement.

"Our government remains focused on improving our educational system for all students. Moving forward, I am hopeful that we can continue to build on positive endeavours to ensure that all New Brunswickers have access to a high-quality education."

Hogan has demanded that the province's three francophone school districts also repeal their policies on gender identity for being at odds with Policy 713, although there hasn't been any legal action involving those districts. 

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."

 Law professor Paul 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.  (Submitted by Paul Warchuk)

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.