Marathon fight for ferry information shows flaws in N.S. access law: Tories

Nova Scotia's official Opposition leader says a marathon court battle for details on public ferry subsidies shows that the province's information commissioner needs more legally binding powers.

Tim Houston was reacting Monday to news it will be March 26, 2020,before his court case is heard seeking to force the Liberal government to comply with the information commissioner's recommendation of full disclosure.

Currently, the commissioner can make recommendations but not issue orders.

The Tories are trying to find out how much of the $13.8 million in public funds to be paid this year to Bay Ferries Ltd. will be a management fee for the company taking on the service between Bar Harbor, Maine, and Yarmouth, N.S.

Houston saidhis chief of staff has already put in more than 100 hours of legal research on the latest legal fight. He saidthat would translate into thousands of dollars in costs, putting such a challenge beyond the reach of most citizens.

"For the government to stretch this case out for what will be more than a year plus, it's very unfortunate," Houston said after a hearing to set court dates.

"The average Nova Scotian couldn't bring this forward. We're very, very fortunate that our chief of staff is a lawyer and she's on salary ... and think of what the other side [the province and the company]is spending."

The Tories went to Nova Scotia Supreme Court to enforce a recommendation by the information commissionerlast December in which she called for "full disclosure of the ferry service funding agreement" for the route.

In her decision, Catherine Tully also said there was a "justifiably high" expectation for providing details on public spending. She wrote the province had failed to show that the economy of the province or the competitive position of Bay Ferries would be harmed by releasing the information.

After the Tories went to court to have the recommendation enforced, Bay Ferries filed legal papers arguing the party's court notice should be quashed because of alleged errors in the paperwork. That question is still before the court, with a hearing set for October.

For the party leader, the drawn-out procedure shows Nova Scotia needs to move to a system where the information commissioner becomes an independent officer of the legislature with "order-making power." That would shift the onus to governments or third parties to prove information should remain confidential, he said.

Tully said in an interview it's still possible that companies like Bay Ferries would go to court to attempt to reverse the decisions of information commissioners. However, she said there's evidence to suggest the courts would used be less frequently.

She said in British Columbia, where the information commissioner has order-making powers, there have only been nine judicial reviews of 132 commissioner reports over the past three years about seven per cent of all decisions.

In Nova Scotia, Tully saidcitizens have gone to court nine times since 2014 to try and enforce recommendations in 61 of her reports a rate of 15 per cent of all her reports.

In her recent annual report, Tully estimated that in 2018-19, Nova Scotia government departments "fully accepted" just 40 per cent of formal recommendations. It's not known how many people simply gave up rather than going to court, she said.

Nova Scotia's Justice Minister Mark Furey has said the province's Liberal government is committed to transparency and is reviewing the Freedom of Information and Protection of Privacy Act to see how it can be modernized. However, the government hasn't committed to moving toward order-making powers.

Houston said if he wins the next election, this will change.

"If I have the privilege to be premier of this province, I'm sure that giving order-making power to the privacy commissioner ... will at times cause a bit of embarrassment for the government," he said.

"But you have to take that. That is what democracy is built on .... That will force better decision-making all along the way."