Nova Scotia judge orders disclosure of management fee paid to Bay Ferries

The CAT, a high-speed passenger ferry, departs Yarmouth, N.S. heading to Portland, Maine on its first scheduled trip on Wednesday, June 15, 2016. (THE CANADIAN PRESS/Andrew Vaughan)

HALIFAX — A two-year court fight by Nova Scotia's Opposition has ended with a judge ordering the province to disclose how much it pays in management fees to a heavily subsidized private ferry operator.

The Progressive Conservatives went to court seeking the release of information about the fee paid to Bay Ferries for operating the ferry between Yarmouth, N.S., and Maine.

In a decision released Tuesday, Nova Scotia Supreme Court Justice Richard Coughlan said he found no evidence that disclosing the fee would harm Bay Ferries' competitive position, contrary to what the company argued in court.

"The management fee is the profit margin Bay Ferries is prepared to accept to operate the Yarmouth to Maine ferry service," Coughlan wrote. "I find the evidence does not meet the test to establish ... that release of the management fee will result in undue financial loss for Bay Ferries Ltd., or undue gain to another bidder."

Coughlan said the terms of the funding agreement do not require the province to keep the management fee confidential, adding that it should be made public under the provisions of Nova Scotia's Freedom of Information and Protection of Privacy Act.

The judge said he would keep the management fee details sealed for 30 days, the period during which either side can file an appeal.

Tory Leader Tim Houston launched the lawsuit in February 2019 in an attempt to enforce a recommendation by the former information commissioner, who called for full disclosure of the funding agreement.

Houston expressed satisfaction with the court's decision during a video call with reporters Tuesday. "Everyone knew since the beginning that this is information that the taxpayers had a right to know," he said. "It's information that is in the public interest. Only the government wanted to keep it hidden."

Houston said he hopes the province will respect the court decision and release the fee, adding that the matter will be a test for incoming premier Iain Rankin, who is yet to be sworn in after winning the Liberal leadership on Feb. 6.

The Tory leader said the lawsuit also shows that the office of the privacy commissioner needs the ability to issue orders, a power that Houston said will be granted if the Progressive Conservatives win the next election.

In an email, the Department of Transportation said it would be reviewing the court's decision in consultation with the ferry company. Bay Ferries also said that it was studying the decision and would decide in "due course" whether to appeal.

Earlier this month, the province announced it was cancelling the ferry's 2021 sailing season because of "ongoing uncertainty" around the COVID-19 pandemic.

The 2020 season was also cancelled because of COVID-19 concerns, and the 2019 season was shelved when Bay Ferries was unable to complete construction at the Bar Harbor, Maine, terminal to meet U.S. customs specifications.

The province had budgeted $16.3 million for the 2020 sailing season and has a contract with Bay Ferries through to 2025.

This report by The Canadian Press was first published Feb. 16, 2021.