On March 19, Andrew Mullins received a notice at his home on Chub Lake, Ont., south of Huntsville. The notice was from the Township of Lake of Bays telling Mullins that he had until May 17 to sign a road access agreement. The agreement pertained to the municipally-owned right-of-way Mullins had been using for the last 17 years to access his property, a right-of-way shared with 17 other residents.
According to the agreement, if Mullins wanted to continue using this right-of-way, he would have to pay the township a $350 application fee (the fee is $650 for roads longer than 30 metres), pay to have the road surveyed, pay to bring the road up to the township’s standards (the standards were unspecified in the notice), pay a $250 annual fee to use the road, and take out $5 million in liability insurance to cover anyone using the road.
If Mullins refused to sign the agreement, the township said he would be fined $1,000 the first time he was found using the road and $25,000 if he was caught using the road three times. The township also said they could levy trespassing charges against him.
“It came out of the blue. No one was aware of this rule,” says Mullins. “It’s an unopened right-of-way on this little parcel of land that’s owned by the township. This road has been in place for many, many years, built by private residents and maintained by the private residents.”
Mullins and his neighbours weren’t the only ones to receive notices. The township has asked residents on 68 other unassumed roads/laneways to sign road access agreements. These are roads that fall on municipal land but aren’t maintained by the municipality. And if you look further afield, other townships are also attempting to introduce road access agreements. Tay Township, for instance, introduced road access agreements on private unassumed roads, hindering residents on those roads from receiving building permits.
In an email, the Township of Lake of Bays explained the reasoning behind the agreement: “Due to increasing risk and potential liability, municipalities must take steps to ensure that a municipality is not held liable for any claim arising from private roads/driveways that are located on municipal property. Although municipal liability insurance should assist in protecting the township from these potential claims, the township will still incur significant costs in its defence for any incidents that may happen as a result of a private road/driveway that is not maintained by the township.”
According to Mullins, the right-of-way only provides access to he and his neighbours’ properties. And the township provides no services on the road, such as garbage pick-up or plowing in the winter. Plus, Mullins says he contacted an insurance provider about taking out $5 million in liability insurance on the right-of-way, and the company told him this wasn’t possible as he doesn’t own the road, the township does.
Bob Aaron, a real estate lawyer, says the agreement could fall foul of Ontario’s Road Access Act. Under this act, the owner of a right-of-way must keep the road open if it’s the only way a property owner can access their property. This means that even if Mullins refuses to sign the agreement, the township can’t bar him from using the right-of-way—unless they’re able to show justifiable cause to close the road and receive a court order to do so.
“On the title deeds to the lots, if it says that the ownership is together with the right to use the roadway then I don’t see how the township can charge them with trespassing,” says Aaron. “I think a deeded right to use it is a defence to the trespass issue.”
Aaron says he’s also surprised the township is asking residents to sign an agreement. “If these people have the right to use the road for access, then what right does the township have to tax them,” he says. “My feeling is that the township doesn’t have the right, and that’s why it’s asking people to sign the agreement.”
For Mullins and his neighbours, they’ve decided to seek legal advice before signing the agreement. “There’s a portion of residents on the lake that are ignoring the notices, saying it’s unreasonable for them to try and stop us from accessing our properties,” Mullins says. “For us, our particular thing is to seek legal guidance before we do anything because anybody can draft a bylaw, but it doesn’t mean its legal.”
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