Holt and the courts: Some lawsuits will go away, others may not
New premier inherits legal disputes ranging from abortion to Indigenous, linguistic and 2SLGBTQ+ rights
Whoever becomes attorney-general — the top lawyer — in Susan Holt's new Liberal government will face piles of lawsuits, along with decisions about how quickly to clear some of them away.
By the end of its mandate, the outgoing Higgs government was embroiled in court actions touching a range of contentious issues, including abortion, trans rights, COVID-19, Indigenous land and minority language rights.
Some of those cases should soon drop off the court docket.
"We see the light at the end of the tunnel here," Kristin Cavoukian of the Anglophone East district education council told CBC's Information Morning Fredericton.
Last week, Chief Justice Marc Richard of the New Brunswick Court of Appeal, put a key part of the council's Policy 713 case on hold, pointing out Holt has promised changes to the policy, which addresses gender identity in schools.
"We're not in the habit of doing moot cases if we don't have to do moot cases," Richard said.
Steve Hutchison, the province's lawyer, said his client's position was no longer clear because of the transition from a Progressive Conservative government to a Liberal one.
"We aren't in a position to obtain any instructions at all," he said.
Richard adjourned the case to give the new government time to sort out how to proceed.
Other high-profile cases may also screech to a halt soon. Some others could continue.
Here are the best-known legal disputes involving the province, and how they may change with a Holt government in power.
Policy 713 and civil liberties
The Anglophone East dispute is one of two involving last year's changes to Policy 713, which introduced a requirement for parental consent if students younger than 16 want to informally adopt new names and pronouns at school to reflect their gender identities.
The Canadian Civil Liberties Association filed a separate application for judicial review, asking that the changes be quashed because they violate the rights of 2SLGBTQ+ students.
Holt says she will not return to the original policy but will adopt recommendations by Child and Youth Advocate Kelly Lamrock, who suggested that students in Grade 6 and above be presumed capable of deciding themselves without parental consent.
Harini Sivalingam, the CCLA's director of equality programs, says this may not be enough to protect all students.
The original policy was the result of "careful deliberation and expert guidance" aimed at providing a safe and inclusive education for trans students, she said.
"We urge her to listen to those who are most affected and to revert back to the original policy," Sivalingam said.
"We hope that we don't have to continue with this lawsuit."
Holt said she'll speak with the association about its concerns with Lamrock's recommendations.
Policy 713 and the Anglophone East DEC
The Anglophone East district education council dispute over the policy is multi-pronged.
The council is appealing a Court of King's Bench decision that it lacked standing to bring its case to court. That's the case Richard put on hold last week.
It's also fighting the province's refusal to let it spend money on the case — while at the same time fending off an application by outgoing education minister Bill Hogan to dissolve the council over what he called the council's unauthorized decision to hire lawyers anyway.
Last week, a Court of King's Bench justice adjourned those cases as well, to Nov. 14.
Holt has promised to withdraw the dissolution application and said last week that she supports the principle of district education councils being able to hire lawyers to take on the province.
Surgical abortions outside hospitals
Another CCLA lawsuit is more likely to go away soon: its constitutional challenge to a provincial regulation that bans Medicare funding for surgical abortions outside hospitals.
After last week's election win, Holt reiterated her commitment to change the regulation.
"Our platform was clear that we are going to address [Regulation] 84-20 and make sure that abortions are covered under Medicare in New Brunswick," she said.
The debate about the regulation has focused on Fredericton's Clinic 554, now closed.
Holt said the change would allow the service to be offered in other settings, including in some of the 30 collaborative care clinics she has promised to open by 2028.
"There are places that are ready to deliver those services and people that are ready to deliver those services," she said.
Changing Regulation 84-20 does not require legislation, just a cabinet order to delete a single line — something the Liberals could do on their first day in office.
"If there is sufficient action, there would be no need for pursuing the lawsuit further," Sivalingam said.
Acadian Peninsula courthouses
The province's top court put another case on hold last week: the appeal of a Court of King's Bench order that the government reconsider its closure of courthouses in Tracadie and Caraquet.
The ruling said the Higgs government hadn't taken into account the potential impact on minority language rights and ordered it to revisit the closures with that in mind.
The Acadian Peninsula Forum of Mayors, which filed the case, says it's willing to compromise and accept a single courthouse in the region rather than the previous two.
"What we're saying to [Holt] and the new government is … 'Please don't discuss with us through the courts. Come and see us,'" said Caraquet Mayor Bernard Thériault, the forum president.
Liberal MLAs who signed a letter supporting the court action when they were in opposition were not willing to comment this week.
Holt made no election promises about reopening the courthouses and suggested last week other solutions such as virtual proceedings may be possible.
"We have no commitment from this government, the new one," Thériault said.
Beers said there would be no comment from Holt's team until it has more information.
Francophone school construction
In September, the Francophone South district education council filed a Charter challenge over the lack of funding for new francophone school construction projects in the district, where many existing schools are overcrowded because of record population growth.
The district argued the Higgs government violated constitutional guarantees to minority-language education by not funding its priority projects.
"They're right that we have to have equitable construction of schools," Holt said last week, suggesting she could address the issue in the 2025-26 capital budget due before Christmas.
"I'm looking forward to having the conversation with the education council and with the civil service to see why we can't deal with that," she said.
Dr. Jean-Robert Ngola's lawsuit
Former New Brunswick doctor Jean-Robert Ngola sued the province, as well as the RCMP, after Premier Blaine Higgs blamed what he called an "irresponsible individual" for an outbreak of COVID-19 in the Campbellton area.
Higgs didn't name Ngola, but the physician argues in his lawsuit that he was easily identified on social media.
Ngola didn't isolate as required after leaving and then returning to the province, and later said the rules were unclear. He no longer practises in New Brunswick.
His lawsuit accuses the province of "institutional anti-Black systemic racism," abuse of power, negligence, defamation, malicious prosecution and a breach of his Charter rights.
Even though Higgs is leaving, the case remains active.
"The new government must take responsibility for the mistakes of the past," Ngola's legal team said in a statement.
Changes to the Vitalite health board
The lobby group Égalité santé en français filed a legal challenge to Higgs's 2022 appointment of trustees to replace the partly elected Vitalité and Horizon health boards.
The group argued the change at Vitalité violated the Charter right to English and French communities managing their own "distinct educational and cultural institutions," though whether that covers health centres has never been tested in court.
Higgs re-established health authority boards in 2023 but with no elected positions.
The case is scheduled to be heard next January.
Holt has spoken in favour of elected boards, and Jacques Verge of Égalité santé says the group is waiting to see what happens next and what its lawyers advise.
Indigenous title claims
Perhaps the thorniest cases to resolve are Indigenous title claims by Wolastoqey and Mi'kmaq nations.
Two of the court applications followed the Higgs government's cancellation of tax-sharing agreements with First Nations.
Holt has promised to try to resolve the disputes rather than pursue what Dean Vicaire, the executive director of Mi'gmawe'l Tplu'taqnn Inc., says could be "an expensive, drawn-out court proceeding."
Holt's election platform committed to establishing "nation-to-nation" relationships based on "a shared understanding of treaty obligations," including new tax agreements.
Vicaire, who speaks for eight Mi'kmaq First Nations, welcomed that but said for now, "the litigation has not been withdrawn or suspended."
One Mi'kmaw community, Elsipogtog, is not part of the case. It filed its own claim in 2016.
Negotiated settlements of the claims might not be quick or easy, either.
In British Columbia, the first modern treaty to resolve a title claim, with the Nisg̱a'a Nation, took almost 25 years to negotiate.
Chief Allan Polchies of Sitansisk First Nation said new tax deals wouldn't mean the withdrawal of the Wolastoqey title claim, but they'd be a step toward more comprehensive agreements on land that could involve resource revenues.
"I think the key thing here is to have the conversation, be at the table, and work with the government that is going to work with Indigenous people," he said.
ABOUT THE AUTHOR
Hadeel Ibrahim; Shane Magee; Information Morning Fredericton; Pascal Raiche-Nogue, Radio-Canada