Nova Scotia Supreme Court Justice Richard Coughlan has ordered the province to reveal the cost of the annual fee it pays to Bay Ferries Limited [BFL] to manage the ferry service between Yarmouth and Maine.
The judge described as “merely possible or speculative” the claims by the company that the information was “commercially sensitive” and releasing the amount would “significantly harm” its financial position. Coughlan said these assertions by Bay Ferries did not make the 10-year agreement between Bay Ferries and the province eligible for an exemption under the Freedom of Information and Protection of Privacy (FOIPOP) Act.
“In considering the evidence as a whole, I am unable to find the evidence demonstrates disclosure will result in a risk of harm to BFL’s competitive position or interfere with its negotiating position that is beyond the merely possible or speculative,” wrote Coughlan in his written decision released today.
“As [Bay Ferries CEO Mark] MacDonald testified, if the management fee was known to BFL’s competitors they would have some indication of how BFL approaches the charging of fees or the compensation for conducting a service. He also testified in individual competitive situations, the company responds as it thinks appropriate and the fee charged could be different in a future circumstance.”
The “management fee” is effectively the profit or the annual amount guaranteed to Bay Ferries for signing a contract to operate the Yarmouth ferry, whether the ship sails or remains in the dock. (COVID restrictions mean the passenger ferry — a former Hawaiian ferry called the Alakai but known locally as The Cat — will sit out for the third consecutive summer this year, tied to a dock in Charleston, South Carolina). The amount of the fee is included (but not broken out) in the annual operating budget for the ferry service. That budget has fluctuated between $13 million and $24 million a year for the past five years.
How much Bay Ferries is guaranteed each year won’t be known for at least another month; the judge has given the province and the company 30 days to decide if they will appeal the ruling.
Even if one or both parties continue the fight, today’s court decision is a victory for Progressive Conservative leader Tim Houston. Houston initiated the lawsuit two years ago when the McNeil government refused to accept the Privacy Commissioner’s recommendation to make the management fee public. The secrecy around the Yarmouth ferry actually goes back four years when the PCs made the original FOIPOP request.
“I see potential in the market but we have to find the right deal,” said Houston in response to question about whether he would keep an international transportation link between Nova Scotia and Maine. “That means at the right cost, with the right schedule, and with the right vessel. There are a lot of moving parts and I think the taxpayers have been let down. They’ve been let down by a government that had a lot of bravado and big words…but their arrangement has been a failure. Then they tried to hide that from the taxpayers and today the Supreme Court has said you can’t hide that from the taxpayers. You have to be open and honest with them.”
Houston said he is “hopeful” new Premier-Designate Iain Rankin will accept the court ruling and use it as a signal he intends to run a more transparent government than Stephen McNeil. Houston said Rankin’s decision on whether to appeal the ruling will be “an early test out of the gate that will show if there has been a change.”
The Halifax Examiner has requested a response from Rankin, who officially will become the next Premier within a couple weeks. One option the government has is to exit the agreement with Bay Ferries but the penalty for doing so would be twice the size of the management fee, whatever that is. The contract runs until 2026.
Under questioning from reporters, Houston said if he wins the next election he would change the regulations to provide the Information and Privacy Commissioner with the power to order the release of government information instead of merely the power to recommend what should be made public. Putting some teeth in legislation which has often turned out to be a paper tiger.
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