Judge hands province small win on Policy 713, pushes case back to fall

The legal battle between the Anglophone East district education council and the Higgs government on Policy 713 could continue into the next school year, just days before the start of a provincial election campaign.

Chief Justice Tracey DeWare of the Court of King's Bench had said earlier this spring that she wanted the case resolved before students return to classes in the fall.

But a tangle of legal filings "has created confusion" that could push a potential hearing on an injunction against Policy 713 to the second week of September, DeWare has decided.

That means it will unfold just one week before the legislature is dissolved for the election.

DeWare's Wednesday ruling hands a small victory to the province, which argued the education council could not seek an injunction to block Education Minister Bill Hogan from repealing its own gender identity policy and from dissolving the council.

The province argued there is already a mechanism to resolve disputes between a minister and a council which involves going to court.

DeWare agreed.

"An injunction is not necessary as the Minister of Education's actions are subject to court oversight prior to any order for dissolution," DeWare wrote.

Hogan welcomed the decision.

"Certainly the decision by Chief Justice DeWare is promising, and we look forward to continuing that," he told reporters.

Consent required for those under 16

Last year's changes to Policy 713 include a requirement that educators get the consent of parents if a student under the age of 16 wants to adopt a new name or pronoun at school to reflect their gender identity.

Anglophone East believes that violates the equality rights of 2SLGBTQ+ students under the Charter of Rights and Freedoms.

Hogan has already declared he was repealing the education council's policy on implementing Policy 713 — which is at odds with the provincial document — and has vowed to dissolve the council for defying his directives on the issue.

That process requires a court application that DeWare says gives the council the same ability to "enlist the assistance of the court" to challenge the minister — making injunctions against repeal and dissolution unnecessary.

The judge said she is still able to consider the district's other requests, including an injunction against the implementation of Policy 713 itself.

Supporters of gender policy in N.B. schools waved pride flags outside the legislature at a protest rally over changes to Policy 713 last year. (Lars Schwarz/CBC)

The district issued a press release saying it was celebrating what it called its "first win" in the case. Council member Kristin Cavoukian said no one from the education council would be doing interviews.

DeWare originally planned to hear the main injunction application from June 18 to 21.

But she says Anglophone East's two amendments to its application, including changes to who was named as plaintiffs and a request for public-interest standing in the case, made it hard for the province to defend itself in court "until clarity is brought to the proceedings."

"This is a situation that needs to be dealt with expeditiously by the Court and the parties but has been an ongoing source of friction between the parties for nearly a year," DeWare wrote.

But she said she had to balance the need for speed with clarifying who exactly is asking for the "exceptional remedy" of blocking a minister from exercising his powers and whether they have the legal standing to do so.

The June 18-21 hearing will now deal with the question of standing.

If the education council gets standing and the case continues, a July 25-26 hearing would decide which expert witnesses and reports can be part of the case.

Finally, the injunction application itself would be heard Sept. 9-12.

By provincial law the legislature will be dissolved Sept. 19 for an election on Oct. 21, meaning DeWare's decision on an injunction could be released just days before — or during — the campaign.

"I would like to see it resolved as soon as possible," Hogan said at the legislature.

"We function on the court's schedule and on [the chief justice's] schedule and the different lawyers' schedules, so it is what it is. It's going to be what it's going to be, preferably the sooner the better."