Chief Justice Tracey DeWare will deliver her decision on one of the legal questions in a case surrounding Policy 713 by June 3, 2024, though the Court of King’s bench judge said she would “do [her] darndest” to have the decision released sooner.
DeWare presided over a hearing on Tuesday looking at whether or not the Anglophone East District Education Council (DEC) can ask the court for temporary injunctions against the Department of Education, while the court decides on the district’s constitutional challenge to provincial policy 713.
The policy was amended by Education Minister Bill Hogan last summer, to require teachers not to use names and pronouns requested by students under 16 unless they first get advance approval from parents.
The DEC launched a constitutional challenge to Hogan’s revised policy in April based on the idea that it asks them to discriminate against students based on their gender identity. At the same time they asked the court to temporarily prevent the enforcement of the policy and the dissolution of the DEC, something Hogan has threatened.
On Tuesday, DeWare told the court she would be considering only the legal question of whether the court ‘can’ impose an injunction, and not whether or not it ‘should’. A second, four day long hearing is scheduled for June to consider the ‘should’ question, if DeWare allows the motion to proceed.
Clarence Bennett is a partner with Stewart McKelvey and is representing the provincial Department of Education in two lawsuits related to Policy 713, one brought by the Canadian Civil Liberties Association being heard in a Fredericton court, and the one brought by the Anglophone East DEC being heard in Moncton.
Bennett told DeWare on Tuesday that the Anglophone East DEC should have used the Education Act to file for a judicial review of Minister Bill Hogan’s actions last month, instead of pursuing an injunction. On April 22, 2024, Hogan repealed the district’s policy overlay to Policy 713, which extends self-identification protections to kids under 16.
But DEC lawyer Perri Ravon, partner with Tower Law based in Montreal, told the judge that the Education Act doesn’t limit what action a DEC can take, it merely provides one option. Plus, argued Ravon, that provision of the Education Act only kicks in once a Minister takes a corrective action, which in this case, happened on Aprill 22, weeks after the DEC had filed its motion for an injunction.
Ravon said it was “unusual” that the province was relying on their own corrective action made on April 22 to “artificially and unsuccessfully” create a grounds to dismiss the action the DEC sought on April 2.
Ravon also argued that it was very common in constitutional cases to ask for temporary injunctive relief, to prevent authorities from enacting or enforcing certain provisions, until a constitutional claim is decided in the courts.
If DeWare’s decision allows for the injunction motion to proceed, Ravon and Bennett, and their respective legal teams, will be back in court for a four-day hearing starting June 18.
