The legal battle for financial details of the Yarmouth-Maine ferry will last until at least 2020 after both sides agreed on Monday to set March 26, 2020 as the tentative date for their trial.
The Nova Scotia Progressive Conservative Caucus filed its court challenge in February, asking a judge to order Nova Scotia’s Transportation and Infrastructure Renewal (TIR) Department to release details about the management fees paid to Bay Ferries Ltd. for operating the ferry, better known as the CAT.
TIR had previously rejected a recommendation from Nova Scotia’s Office of the Information and Privacy Commissioner (OIPC) to release the management fees.
The fees would reveal how much of the ferry’s annual subsidy — it’s projected to receive $13.8 million for the 2019 season — is paid to Bay Ferries for simply being in charge of the service.
The province has no obligation to follow recommendations from the OIPC.
PC Leader Tim Houston told media after the hearing on Monday that it comes down to a desire to be transparent.
“It’s a simple issue to me,” he said.
“The government knows what the right thing to do is, and that is to release the information based on the advice from the information commissioner.”
Agnes MacNeil, representing Nova Scotia’s Department of Justice, has been in court, but Scott Campbell, the legal representative for Bay Ferries Ltd., has taken the lead in opposing Houston’s motion.
Bay Ferries has attempted to quash the push to release the information, arguing that the PCs failed to file the proper paperwork.
Under the Freedom of Information and Protection of Privacy Act (FOIPOP), an application to appeal a government’s ruling must be filed within 30 days of that decision.
But since the PC Caucus filed the appeal and did not name the person who filed the original FOIPOP application, Campbell has argued that the proper procedure was not followed and the case should be thrown out.
The court ruled against Campbell’s motion, and although the Tories have since amended the application to name Houston as their lead complainant, the legal battle is set to continue.
Bay Ferries has filed an appeal, which is set to be heard on Oct. 10, 2019.
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But the court process must go ahead, and Monday saw both Campbell and the caucus agree to dates for when various affidavits will be filed with the court.
The end result is a court battle that will last for more than a year before a conclusion is reached.
Houston says he is lucky that his chief of staff, Nicole LaFosse Parker, is a lawyer. She has been representing the Tories in court and will save on costs during the trial.
The PC leader estimates that LaFosse Parker has put in at least 100 hours on the case and expects she’ll put in many more as it progresses.
“The Liberal government is making a bet that people don’t have the resources to continue to push,” Houston said.
He added that LaFosse Parker is a salaried employee of the caucus and isn’t receiving additional payment for her work.
How the dispute began
The CAT ferry is operated by Bay Ferries as part of a 10-year deal with the Nova Scotia government made back in 2016.
As part of the deal, the province agreed to cover any cash deficiency the company incurs for the year, as well as a management fee and any bonus, should the ferry perform better than expected.
But the price tags for the management fee and a possible bonus have been kept secret.
As a result, three groups — including Marieke Walsh, then a reporter with Global News — requested the financial information that TIR had refused to provide under the province’s Freedom of Information and Protection of Privacy Act in the spring of 2016.
But the government refused, saying it could harm the financial or economic interests of Bay Ferries to do so and could also create a competitive disadvantage for the company.
Bay Ferries also objected to the release of the information.
The government said the disclosure of the management fee could harm Bay Ferries’ ability to negotiate a move to Bar Harbor or allow competitors to have an advantage at the negotiation table.
“There is no evidence to reasonably conclude that by knowing what the operation costs and management fee the province is paying now could realistically assist a competitor in devising a bid in the future,” Catherine Tully wrote in her report recommending that the government release the fees.
Tully also said the management fee paid to Bay Ferries for two other ferry contracts is already publicly available and that the practice of publishing management fees “does not appear to be that uncommon.”
“It seems that Bay Ferries is able to successfully compete on ferry projects despite the fact that its management fees for two other projects are publicly available,” she concluded.
Premier Stephen McNeil chose to ignore the ruling. The PC Caucus filed its court application soon after.