Judge dismisses action against MVSD trustees

Dauphin’s Court of King’s Bench has dismissed a court action by a Mountain View School Division trustee against several of his colleagues after they voted to pause the return to students singing “God Save the King” daily.

In Manitoba, youth are required to sing the first verse of the royal anthem on all regular school days. However, the regulation has not been enforced in more than 25 years.

In January, the board of trustees of MVSD passed a resolution that school administrators and staff would not be required to enforce the regulation until completing specific steps, which include reviewing letters of concern and consulting with education officials in the province.

Paul Coffey, who is one of the nine MVSD trustees, filed an affidavit in Dauphin’s Court of King’s Bench in which he stated that the “law is not optional.”

“No board has the authority to suspend provincial statutes or regulations,” he said. “If the board disagrees with a regulation, the proper response is to advocate for lawful change.”

Coffey filed an application in June to apply for a judge to issue a declaration that six trustees in the school division violated the Public Schools Act when they voted to pause the reintroduction of “God Save the King” in schools.

He accused them of breaching their oath of office, including the oath to “be faithful and bear true allegiance to His Majesty … (and) his heirs and successors according to law.”

Coffey further argued the trustees violated the MVSD Trustee Code of Conduct, which states that a trustee must abide by the Public Schools Act and school division bylaws and policies.

The trustees listed in the application were Scott Lynxleg, Floyd Martens, Gabe Mercier, Conrad Nabess, John Taylor and Jarri Thompson.

Justice Sandra Zinchuk outlined her reasons for dismissing the application in an endorsement sheet on Sept. 19.

The Public Schools Act says that if a trustee is alleged to have breached a provision of the act, a voter can apply for a declaration that the trustee is in violation.

While Coffey is on the board of trustees, he is also a voter, and Zinchuk said there didn’t appear to be any prohibition under the act against him bringing the application forward.

“In respect to the oath of office, the Act only requires that before assuming the role of duties of the office of trustee, a person must make an affidavit of qualifications and take the oath … There is no provision in the Act specifically relating to a breach of the oath,” Zinchuk wrote.

She said Coffey’s complaint would “more appropriately fall under the MVSD Code of Conduct, as it is being alleged that the respondent trustees are deliberately not enforcing provincial law.”

But, she added, the only two situations where the court could rule on a violation of the code of conduct would “relate to a trustee’s requirement to keep personal or confidential information in confidence” or “if the application is brought forward by the secretary-treasurer, not a voter.”

To this, Zinchuk said Coffey argued that “there is no internal mechanism to address the breach in the case as the majority of the Board voted in favour of the resolution and therefore would not hold themselves to account.”

Zinchuk said that his argument is not a legal basis to employ the act.

She said the application did not fall within the provision Coffey alleged and dismissed the application.

Zinchuk also said Coffey argued that the act provides for a confidential application and took issue that the respondents’ counsel was able to participate in the application.

Zinchuk said an ex-parte application is not confidential and that while he was entitled to bring the application without notifying the respondents, they became aware and counsel attended the application and filed a legal brief, which Zinchuk accepted in this circumstance.

» sanderson@brandonsun.com