New Brunswick Education Minister Bill Hogan is warning members of the Anglophone East District Education Council (DEC) that they may face personal liability for what he calls, “improper use of public funds”.
The warning comes in a letter dated April 16, which is part of a series exchanged this month between Hogan and Anglophone East district chair Harry Doyle, stemming from the DEC’s legal challenge to Hogan’s revisions to policy 713, which they say would force them to violate Canada’s Charter of Rights.
On April 2, Doyle and the DEC filed a notice of preliminary motion in the Court of King’s Bench, seeking an injunction to prevent Hogan from dissolving the DEC and repealing its policy on the implementation of Policy 713, two things the minister had threatened to do in past letters to the district.
On April 5, Hogan wrote to the school district, asking for details of the costs incurred in preparing the court filing, and questioning the authority of the district to spend its money on a legal action.
On April 11, DEC chair Harry Doyle replied, declining to provide the cost information, and outlining the chain of events in the year since Hogan and Premier Blaine Higgs first announced their review of Policy 713, which had been approved in 2020 with the goal of protecting the rights of LGBTQ+ students in the public school system.
In his letter, Doyle also made the case that the DEC did indeed have the right to spend money on a legal battle, quoting from the Education Act that a district council, “may sue and be sued.”
Hogan replied in turn with a letter on April 15, once again demanding legal cost information, and this time giving a deadline of 5pm Tuesday, April 16. Hogan also reiterated his position that the DEC does not have a right to pursue a legal action against the province, and threatened that he would be taking further action, “in the event public funds are being expended improperly and without the legal authority to do so.”
Hogan also pointed to possible legal consequences for the elected representatives on the DED. “Please consider that there may be personal liability for any individuals who are directing improper use of public funds, including members of the DEC,” he wrote.
Doyle sent a response on Tuesday, again refusing to provide cost information, while noting that the Minister already has access to information about DEC expenditures, through provincial accounting systems. Doyle also reiterated his position, that the DEC has a right to sue, and that their current litigation is part and parcel of their duty to protect and care for students.
The District Education Council met Tuesday night, and while the timeline of letters between Doyle and Hogan was mentioned, council did not discuss the matter further at that meeting. DEC member Kristin Cavoukian, who has served as spokesperson for the DEC on policy 713, says the council is not commenting at this time.
Policy change ruled out provincial funding for legal challenge
The DEC had originally sought funding from the province for its legal action, which at the time, the provincial policy on legal advice for DECs seemed to allow. Before the province revised it in December, the policy read:
“The Province will make independent counsel services available to the school districts to provide necessary legal advice and representation when, in the opinion of the Office of the Attorney General, the legal interests of the Province and the school district do not coincide.”
On December 22, about a month after the Anglophone East DEC applied for funding of its legal challenge, the province changed that policy to read that the department will,
“determine, in consultation with the Office of the Attorney General, if a conflict exists between the interest of the Province and the DEC or school district. When a conflict is identified… no further legal or financial support will be dispensed by the Province in respect of that matter.”
Dates set for hearings on injunction
CBC Moncton’s Shane Magee reported this week that Judge Tracy DeWare has set dates for further hearings on May 21 and June 18-19. According to Magee, a lawyer representing the province told the judge he would be filing a motion to dismiss the DECs legal challenge, as soon as their case against the province is filed. Currently, the DEC has only filed a request for an injunction to prevent Hogan from repealing its policy and dissolving the council. DeWare has given the DEC until April 30 to file its broader case, and the province until May 15 to respond with a possible motion to dismiss.
The Anglophone East DEC case is not the only legal proceeding underway regarding the province’s controversial changes to Policy 713. A legal challenge launched by the Canadian Civil Liberties Association in September moved forward this week in a Fredericton court, as a judge heard from three of nine potential interveners in the case. After the hearing, the province finally handed over two boxes documents related to the province’s Policy 713 review and revision. The court will hear from more possible interveners on Monday.
