Province says school district can't bring Policy 713 case, hearing set for Tuesday

A hearing next week may determine whether a school district's case against the New Brunswick government over a gender identity policy can proceed.

The Anglophone East district education council is suing Education Minister Bill Hogan, alleging changes to Policy 713 last year violate the rights of students.

The province is expected to argue during a court hearing Tuesday that the school district lacks standing, a legal term for the ability to bring the case to court. 

A decision in the province's favour would end the case.

Otherwise, the next step in the case would be a June hearing over the district's request for injunctions. 

The injunctions sought would block the minister from seeking to dissolve the education council and revoking its gender identity policy. 

The sides appeared by phone in Moncton court Wednesday for a case management conference to discuss the status of the case and set timelines.

A waste to not decide standing first, lawyer says 

"The notion that they can proceed on injunction without standing, frankly without even having a proper plaintiff, is really problematic," Clarence Bennett, a lawyer representing the province, said Wednesday. 

He said having a hearing on the injunction before deciding standing would be procedurally unfair. 

"If we're right, and the plaintiffs don't have standing to bring this injunction, proceeding through an injunction, and hiring experts, and going through all the expense, and judicial resources and all that — it's wasted."

Bennett told Court of King's Bench Chief Justice Tracey DeWare that the education council had the chance to join a separate case over the province's Policy 713 filed by the Canadian Civil Liberties Association being heard in Fredericton but opted not to do so. 

Bennett said it's led to a situation where there are two separate cases being heard in two courts in the province on similar issues. 

"Those issues are for another day," DeWare said. 

Perri Ravon, a lawyer representing the education council, later added that whether the cases should be combined can be decided at a later point. 

The education council's case argues Policy 713, which requires school staff to get the consent of parents if a student under 16 wants to adopt a new name or pronoun, violates the charter and human rights of students. 

The district had adopted its own policy implementing Policy 713 which says 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."

Wednesday was the deadline DeWare had set for the province to file motions calling for the council's case to be dismissed. 

The province's online court registry shows two motions filed by the province and CBC News has requested copies, but they have not yet been provided.

It's unclear how quickly a decision on standing will be made, though DeWare at several points Wednesday indicated there could be an oral ruling. 

The injunction hearing, originally set for two days, has been extended to four days starting June 18.

The minister has demanded the district revoke its 713 policy, and threatened to dissolve the education council. That prompted the district to file its case, including seeking an injunction to block dissolution. 

Hogan has said earlier this month he would start the process to dissolve the district education council over its spending on the case. The dissolution process requires cabinet approval and an application to court.

It's unclear whether cabinet has decided to move ahead with dissolution.