A mother who has two children enrolled in Manitoba’s French-language school division is seeking a court injunction to allow them to attend class without wearing masks.
Krista McKenzie, a practising lawyer who is representing her family, has taken the Division scolaire franco-manitobaine to court because administrators have asked her to keep her kids home until she can provide more detail about why they cannot wear masks at school.
She made her case Monday during a bilingual hearing held via conference call in front of Court of Queen’s Bench Justice Gerald Chartier.
"There is no doubt that this is a serious question to be tried: Does a school board have the right to deny mask exemptions and on what basis? Does the school board have the right to medical information to assess mask exemptions and to what extent, if so?" said McKenzie, who owns a boutique law firm in Orillia, Ont.
She is not registered as a practising lawyer in Manitoba, but her children attend school in the province. McKenzie did not respond to repeated requests for comment.
Manitoba has mandated the use of non-medical masks for students in Grade 4 and up, staff and all visitors in schools, when two metres of physical distancing is not possible. Grade 3 students in 3-4 split classes "should" wear a face covering for the benefit of all students and staff in the classroom, according to provincial guidelines, which also require masks to be universally worn on school buses.
New guidelines on limitations indicate divisions can grant exceptions for nine reasons, ranging from a child being younger than two to having a facial deformity to living with a medical condition that would prevent them from safely wearing a face covering.
Citing privacy laws, McKenzie declined to disclose specifics about her children’s health, saying only the exemption is for "medical and other reasons."
"The court is not entitled to say, ‘yes, your medical reason is valid, or not – what is it?’ That’s what the (division) is trying to do. They’re not entitled to do that. That’s the whole issue," argued McKenzie, when pressed by the judge about her basis for an exemption.
She said she is seeking an exemption on the grounds there is limited research about kids wearing masks, little is known about the repercussions of wearing masks on children — especially those with medical conditions, and children are too young to be able to voice when they need to take off a mask.
McKenzie spoke during the hearing about her youngest child being a Grade 3 student in a 3-4 split while her eldest is intimidated by school staff and thus, unable to speak up for himself.
The division’s position is that its duty is to protect school communities and the mask mandate is one tool to keep students and staff safe from COVID-19. The defence put forward an affidavit from the president of the Manitoba Teachers' Society, in which James Bedford states the collective well-being of school communities must prevail over individual rights and personal preferences.
In French, Christian Monnin, lawyer for the Division scolaire, argued the division has the authority to ask for more information about an exemption, which could affect the security of other students and the school community. Monnin said the division needs details about each child's individual limitations so both parties can work together to find a reasonable solution.
He cited vague statements about the request, including an email from McKenzie in which she wrote the exemption is "for a number of reasons, including mental, dental, medical and personal choice."
McKenzie has also provided the division with a medical note from her children’s doctor in Ontario. It states the students cannot wear masks continuously.
As per provincial guidelines, medical notes are not mandatory for an exemption. However, the latest guidelines released on Sept. 18 state guardians must provide information about limitations to a school — and at the division’s discretion, administrators may request a note from a health-care provider.
McKenzie argued the ever-changing protocols have not been properly communicated and the division has acted arbitrarily, the result of which has been her children's right to education being denied for two weeks.
In response, Monnin spoke at length about the fluidity of the COVID-19 pandemic.
Chartier said on Monday he would deliver a decision before the end of the week, noting the "relative urgency" of the case.
Monnin, superintendent Alain Laberge and the teachers society declined to comment on the open case. Neither the Manitoba School Boards Association nor the lawyer representing the association responded to the Free Press.
The French division had received 10 requests for mask exemptions — seven of which have been accepted and three of which are, as of Wednesday, pending.
Maggie Macintosh reports on education for the Winnipeg Free Press. Funding for the Free Press education reporter comes from the Government of Canada through the Local Journalism Initiative.
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