District education council argues it needs to sue province to meet its mandate

The Anglophone East District Education Council says it has a right to sue the province over its gender identity policy because its job is to protect students and their rights.

But the province says allowing the council standing to sue would be an abuse of process and an unnecessary multiplicity of proceedings. 

The council has filed a challenge to the section of Policy 713 that says teachers and staff need parental consent before using the chosen names and pronouns of kids under 16. The council alleges the policy violates the rights of 2SLGBTQ+ students under the Charter of Rights and Freedoms and if the minister forces them to apply it, then they would be complicit in the alleged harm.

But before any constitutional arguments can be heard, the council has to prove that it has legal standing to bring the suit forward.

Lawyers made arguments on the issue Tuesday and Wednesday. At the end of the hearings Wednesday afternoon, Justice Tracey DeWare said she will try to make a decision before the case is back in court in late July.

At Court of King's Bench in Moncton, the province's lawyer, Clarence Bennett, said the district education council is a form of local government, so it does not have direct Charter rights that can be contravened. He said the council also does not directly represent 2SLGBTQ+ people in any "meaningful" way, since only two per cent of the people it represents identify as a member of the community. 

But lawyers for the education council say its mandate is to ensure the success and the safety of the students in the district and to defend their rights, and Policy 713 stops them from being able to do so. Council lawyer Perri Ravon said Policy 713 would also "force the DEC to violate the rights of the students."

"[This] makes their proximity that much greater, makes their standing … that much stronger," she said Tuesday.

Ravon said forcing staff to use a child's birth name without their consent, or using a pronoun they don't identify with, will cause harm.

The education council also wants to add Dominic Vautour to the list of plaintiffs, to represent parents who volunteer in school and are ruled by Policy 713. The province is challenging this, alleging there's a conflict of interest since Vautour is also a member of the education council.

The Canadian Civil Liberties Association has filed a similar lawsuit in Fredericton and plans to argue on behalf of students whose rights are affected by the policy. Bennett said allowing the council to go ahead would mean two cases are dealing with the same issue, wasting resources.

Ravon said the civil liberties association case is different. She said the council is making arguments based on Section 16 of the Charter, which guarantees that French and English linguistic communities have separate educational institutions.

Ravon also said the Fredericton case does not include the rights of volunteers or non-unionized staff, whose freedom of expression is also affected.

'Untenable legal situation'

Ravon said if the education council follows the policy, then it could be legally liable for infringing on the rights of the students in question. She said this puts the council in an "untenable legal situation."

The province's written submissions said because the education council is an agent of government, funded by the government, granting it standing to sue that same government would be a "perversion of ... the rule of law."

Ravon said that would be "news to the Supreme Court of Canada and the school boards across Canada," that have successfully sued in the past.

If Justice Tracey DeWare sides with the province, that will be the end of the education council's case.