Sio Silica threatens legal action against councillors

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This article was published 12/09/2023 (842 days ago), so information in it may no longer be current.

Two RM of Springfield councillors who have consistently opposed Sio Silica’s plan to mine silica sand in the municipality, have now been notified that they could personally face legal action.

A letter from MLT Aikins, on behalf of Sio Silica, was sent to lawyers for councillors Mark Miller and Andy Kuczynski and the RM of Springfield, decrying what they call the continued efforts to delay and disrupt the rezoning of lands for the planned facility and the development agreement.

The letter points out that the Municipal Board ordered the municipality to enter into a development agreement and that the zoning amendment for the facility was to be considered separate from the regulatory process.

At the June 19 special meeting of council, both Miller and Kuczynski voted against the development agreement while Coun. Melinda Warren abstained.

The company goes on to claim that Miller and Kuczynski are wrong to think that the municipality has the legal right to regulate off-site extraction activities through the development agreement itself, adding it’s on that premise that the two councillors caused them “to utilize whatever procedural mechanism might be available to stall and delay the development agreement.”

The letter goes on to explain “potential action for misfeasance in public office”.

“But for Councillors’ Miller and Kuczynski’s deliberate and bad faith attempt to disrupt the land use planning process, the development agreement would undoubtedly have been approved months ago,” the letter stated. “Construction of the processing facility this fall would be on track. The fall construction season, in all likelihood, has now been lost.”

The letter also states “our client is considering an action for misfeasance in public office against both Councillors Miller and Kuczynski on account of their continued attempt to exercise their power for an improper purpose with reckless disregard for the lawfulness of their conduct and the financial consequences to our client.”

“Any such finding of liability against these two council members would in our view result in vicarious liability for the municipality,” the letter stated.

The letter also highlights the two City of Winnipeg planners who were found liable for unwarranted attempts to delay or slow down a land development for non-planning related reasons earlier this year. Damages of $5 million were awarded against the planners and the City of Winnipeg was held vicariously liable.

The letter also blasts the two councilor’s referendum and calls on the municipal council to reconvene and formally approve the development agreement.

Because of the negative vote and the abstention of one councilor the development agreement will be addressed by the Manitoba Municipal Board instead.

Sitting in Chicken Chef in Dugald on Tuesday the two councilors were joined by Allan Akins, executive member of Springfield Taxpayers Rights, to discuss the letter they received back on Aug. 11.

They said they wanted to be sure they were allowed to go public and share this development that Miller said has “thrown us for a loop”.

“This is nothing less than a threat, intimidation,” Miller said. “I’ve had sleepless nights.”

Miller said they aren’t trying to be obstructionists.

“We are now seen as renegades trying to protect the water in this region and I don’t think that’s just, fair or accurate,” he said. “We were elected on strong mandates from the people of the community to protect our water and that’s what we’re trying to do.”

Kuczynski added that they aren’t outliers, representing half the municipality between their two wards.

“We’re just trying to do the best for this municipality,” he said.

Allan Akins said council could be doing much more to hold Sio Silica accountable through a development agreement.

“The RM has the legislative power to force Sio to do development agreements, conditional use permits and public hearings,” he said. “Each drill pad, if it’s on a separate title will need its own development agreement, its own conditional use permit and it will also require to have public input.”

Akins said council is within their rights to include requirements such as pilot wells for ongoing testing and free water testing for citizens.

For the Miller and Kuczynski, even gathering information about past council communications has been difficult.

As newly elected councillors they requested a file that would contain all past correspondence with Sio Silica, previously called CanWhite Sands Corp., but said administration and the rest of council would not support that.

The pair filed a Freedom of Information Request, in order to access records held by the municipality they serve and have since been billed $840 by the RM.

“We’re willing to pay that because we think it’s very critical,” Miller said.

He added that they weren’t opposing the development plan just to prevent Sio Silica from operating or to delay the process.

“We’re not being obstructionists,” Miller said, saying issues with the level of insurance the company must hold and the lack of public consultation were just two concerns.

Kuczynski added they still don’t understand why the development is split into two pieces, the extraction approval being left up to the province, and the facility approval given to the RM.

“We just want protection for the residents of this municipality, for their water,” Kuczynski said.

Akins said it also raises a new concern.

Although it seems illogical that Sio Silica would start construction on the facility before their extraction process was approved, that’s exactly what Sio Silica is suggesting when they say they’ve lost part of the construction season.

After the Clean Environment Commission highlighted many concerns with the process, the decision has been forwarded to the province.

No decision will be made until after the election.

But Akins said for Sio Silica to admit they’d be building right now, shows they may already have been tipped off.

“It means they already have approval if they’re going ahead, putting up a $100 million building,” he said.

Both councillors admit they were shaken by the letter, causing sleepless nights and the realization that a lawsuit could cause them to lose everything.

But they’re not about to back down.

Miller said he was elected on a platform that included his pledge to protect water.

“I feel that if I pulled back and/or resigned or just went along with the flow of council that I would be neglecting what the electors put me in place to do,” he said.

Kuczynski agreed, saying they need to stay strong and are thankful for the support they continue to receive from ratepayers.

“We need 100 percent safety for everybody,” he said.

The two councillors began retaining a lawyer about six months ago. Their legal expenses are paid for by a fund created on GoFundMe titled Save our Water 2023.

The fund has collected $10,605 so far.

This isn’t the first time a legal threat has been used to silence opposition.

In January 2021, Thompson Dorfman Sweatman, a Winnipeg law firm reprenting CanWhite Sands Corp. sent a cease-and-desist letter to Jacqueline Bowden.

Bowden and her husband Brent Smith own 53 acres in Vivian near a property where CanWhite was doing exploratory work.

The letter focused on what they called “defamatory comments” they said Bowden posted on Facebook and also accused the couple of trespassing on company property.

The Carillon reached out to Sio Silica and RM of Springfield Mayor Patrick Therrien. Neither responded to requests for comment as of press time.