Case Law/Downloads

FOCA publishes articles on occasion regarding issues and legal decisions about private roads.

You can view related information available for download to the left.

Unpaid Road Dues are an Unjust Enrichment        

With notes from Don Payne, FOCA Roads Advisor

A common issue that we hear about concerns the inability of associations to get everybody to pay their annual road dues. Often when properties change hands, the new owners will not pay their road dues. Their excuses are that "they were never informed" or that "it is not in my deed" or "we don’t belong to your association and never will." Others may not agree on the amount levied and only pay what "they" think is fair, especially after they have personally moved a little gravel off the shoulder to fill in a pot hole on the road behind their cottage. Some quit an association altogether because widening the road on a dangerous hill caused a large tree to be removed, and some have been known to stop paying dues for fear of being sued should there be an accident.

Some associations cannot collect an adequate amount of money for proper road maintenance because sometime in the past one property owner dissented from paying for whatever reason, and then others dissented to show support or would not pay because someone else was not paying road dues. The list of different excuses/reasons for not paying is quite long.

Resolving these differences amicably and between neighbours is the best option.  No one likes to go to court over unpaid road dues. If the unpaid dues are $10,000 or less you can go to Small Claims Court where you may be required to be represented by a lawyer if your association is incorporated.

Courts make judgements based on the information presented, so it is important to get your facts straight before applying. It may be a good idea to have a clause in your association bylaws allowing the executive to initiate court proceedings to collect dues and other monies owing. Barring such a clause, it would be useful to have a resolution passed to direct the executive to use the courts. There should be historical records; minutes of annual meetings showing dues levied as well as records of who has paid, when and how much. The minutes should show any resolutions that affect the collection and use of funds. They should show that "collection" letters have been sent to the "dissenters" by registered mail, and that the letters included all the resolutions passed and the authority to make a collection. All correspondence between the dissenter and the association should be on file. The treasurer should have all the bills that have been paid and reasons for the division of the costs to all road users. There should be copies of everything for the court and for the dissenter/defendant. Added to these documents would be copies of any previous court judgements from other jurisdictions that support your case of "unjust enrichment" on the part of the defendant.

One relevant court judgement is Point Abino Association, plaintiff, and Stewart Lee, defendant. The 1997 hearing was in Ontario Court of Justice (General Division) Welland, Ontario. In this particular case, the court found that the road that is owned by the Point Abino Association was being used by Lee to reach his otherwise landlocked property on Lake Erie, and that Lee had refused to pay his fair share of the costs of maintenance, snow-plowing, municipal taxes and liability insurance. The court held that there was no requirement on the part of the association to give notice that owners of the properties accessed by its road had to pay fees in order to use it. It held that unless Lee paid his equitable share of the annual costs incurred, he would be "unjustly enriching" himself at the expense of the other payees, whether they were association members or not. In addition it asserted that it was not up to the defendant to be the arbiter of how much should be paid, but that he had every right to join the association and make his feelings known at its annual meeting.

This is just a synopsis of the judgement. Any association could use its content in a final collection letter before actually going to court in the hope that the person who has not paid their road dues would see that the association was determined to collect, and that there was already a court judgement as precedent for being able to do so. The complete text of the judgement can be found at left.

FOCA does not believe that people who do not agree should have to go to court to settle their differences. However, a small claims decision can serve as a warning to others to not seek to unjustly enrich themselves at the expense of others. If the judgement does not cause the defendant to pay their dues, then, and only then, may a lien be placed on the defendant’s property, thus prohibiting them from selling without paying what is owed.