N.S. Supreme Court orders release of Bay Ferries management fee

·3 min read
The Nova Scotia government cancelled the 2021 sailing season for ferry service between Yarmouth, N.S., and Bar Harbor, Maine, due to the COVID-19 pandemic.
The Nova Scotia government cancelled the 2021 sailing season for ferry service between Yarmouth, N.S., and Bar Harbor, Maine, due to the COVID-19 pandemic.

(Bay Ferries Ltd. - image credit)

A Nova Scotia Supreme Court justice has ordered the McNeil government to tell the PC caucus how much the province is paying Bay Ferries to run its service between Yarmouth, N.S., and Maine.

The governing Liberals have been withholding that information from the Official Opposition for close to four years, arguing its release would "harm the financial or economic interests of a public body or the government of Nova Scotia."

In a decision handed down Tuesday, Justice Richard Coughlan dismissed the province's key argument as nothing more than "a mere possibility."

The leader of the Nova Scotia PC Party called the decision by the courts a victory for taxpayers.

"This is a victory for the little person because most people don't have the resources, the time, the energy, the ability to take the government to the Supreme Court," said Tim Houston.

"Everyone has the right to know what the management fee is, and they should because it's taxpayers' money."

Despite the court's findings, Premier Stephen McNeil shot back at the Official Opposition during a regularly scheduled COVID-19 update Tuesday.

He called it an "attack on proprietary information in the private sector."

"I believe it will put a chill on private sector investment in the province of Nova Scotia," said McNeil. "And if that's what the Conservative Party stands for, they should stand up and say so."

He initially told a reporter it was up to Bay Ferries to decide whether to appeal the ruling and not a case for the province. He later told another he would leave the decision to his successor.

"This is not a decision for us to make, for me to make, and [it] will made by [the] future government."

PC leader appeals to premier-designate

The PC caucus first asked for that information in an access to information request filed May 3, 2016. The caucus received some of what it asked for, but the province withheld the management fee.

The access to information commissioner reviewed the file and recommended the governing Liberals hand over the information it redacted in December 2018. The Department of Transportation and Infrastructure Renewal simply refused to go along with that advice.

Under Nova Scotia law, the only recourse for the conservatives was to appeal to the Nova Scotia Supreme Court. Tuesday's decision is open to appeal either by the province or Bay Ferries, which is also named in the action.

Houston urged the province not to appeal, aiming his plea directly at premier-designate Iain Rankin, who is expected to be sworn in next week.

"If there's really a change in the fundamental way that this government operates, if there's really been a change, I would expect that we would see that change today or tomorrow," Houston told reporters.

"The new premier, if he wants to do things differently, and I hope he does, he would just say, 'Look, I'm sorry that this has [dragged] on for four years, here's the number that you have a right to know.'"

Sensitive information, says company

For its part, Bay Ferries has argued disclosing the management fee could hurt its bottom line.

"The amount of this management fee is confidential and commercially sensitive information, because it represents the margin that the company is willing to accept on a service of this nature," Mark MacDonald, chairman and CEO of Atlantic Ferries Holdings, noted in a court affidavit.

"In this context, I am concerned that public disclosure of the management fee will harm [Bay Ferries'] competitive position in the ferry industry."

MacDonald testified during the court process that the management fee represented the profit the company made on the service.

Coughlan was not convinced.

"I am unable to find the evidence that demonstrates disclosure will result in a risk of harm to [Bay Ferries'] competitive position or interfere with its negotiating position that is beyond the merely possible or speculative," he wrote in his 23-page decision.