Province says school district has spent $400K on lawsuit over gender-identity policy

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.

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.

"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.