Tories clear 'hurdle' in quest to get access to Bay Ferries management fee

A court challenge by Nova Scotia's Progressive Conservative Party to learn the management fee paid to the operator of the Yarmouth ferry will sail on.

In a ruling released Wednesday, the Nova Scotia Court of Appeal upheld a Supreme Court of Nova Scotia decision that Tory Leader Tim Houston's name could be substituted for the caucus research director who filed the initial freedom of information request in 2016.

The party wants the management fee the provincial government pays Bay Ferries to operate the service between Yarmouth and Maine made public.

In a phone interview, Houston said he is happy with the court's decision.

"This is another procedural hurdle that's been cleared," he said.

Writing on behalf of Justices Duncan Beveridge and Peter Bryson, Justice Joel Fichaud said there were no errors contained in a previous ruling by the Nova Scotia Supreme Court.

'Ample evidence' to support ruling

At issue was whether the Tories could replace the name of the party's director of research for Houston's as it asks the Nova Scotia Supreme Court to compel the government to release the management fee, without having to start the process all over again.

Although then-privacy commission Catherine Tully said in 2018 there was no legal justification to withhold the information, officials with the Transportation Department disagreed. Because the government is not bound to follow the privacy commissioner's recommendations, that left a legal challenge as the Tories' only recourse.

A lawyer for Bay Ferries argued the names couldn't simply be substituted, but the court said it was clear that research director Lisa Manninger was working on behalf of the caucus, which is ultimately answerable to Houston.

"There was ample evidence to support [the judge's finding]," Fichaud writes. "Ms. Manninger did not launch her own frolic. Rather, she executed what is expected of the 'director of research' for a political Caucus."

Brett Ruskin/CBC

With the procedural matter settled, the Tories, the provincial government and Bay Ferries will be back in court in March to argue about the actual release of the management fee.

The province has argued the fee is proprietary information the company needs to protect for competitive purposes, while also noting the total amount spent on the ferry each year is publicly disclosed.

Houston said his party supports the ferry service, but added that it's also important to know if the province is getting the best deal possible and money is being spent wisely. Given that the ferry didn't sail in 2019 as it works to shift its Maine port of call from Portland to Bar Harbor, Houston questioned the success of the deal signed by the government.

More generally, Houston said it shouldn't take a court challenge to get information the privacy commissioner has already said should be made public.

"Certainly, there's times when it's necessary to keep information that the government is working on, or tendering, or whatever the case may be, secret, but we need to make sure that the system can be trusted and at every opportunity this is a government that puts forward the reality that we can't trust the system to work."

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