To Bubble or not to Bubble
Understandably, we all want to protect our docks and boathouses from ice damage and the use of a bubbler can be an effective way to do that. However, there could be serious consequences that may ultimately cost you more than the price of fixing your dock.
Bubblers are meant to keep ice away from the dock so when the water or ice level drops, the ice doesn’t pull on the structure tearing boards or causing cribbing to shift. Keeping ice ten feet from your dock is sufficient to avoid damage. Unfortunately, too many bubbler systems create areas of open water that far exceed what is necessary, thereby creating [resulting in] a hazard to people and animals.
It is not widely known that there is legislation governing the use of bubblers that create openings in the natural ice. The Navigable Waters Protection Act defines two types of bubblers. Both types of bubblers cause warmer bottom water in the winter to be lifted up to the cooler surface water. The first is a system of pipelines on the bed that inject air or water into the water column and creates turbulent waters rising around the dock preventing the formation of thick ice. Pipelines resting on the bed of the water or suspended in the water column may need approval under this act. The second type is a fan that is suspended in the water column and circulates the naturally warmer water upwards. Temporary fans that are suspended in the water do not require approval under the act. Property owners should check with Transport Canada before installing any type of bubbler system.
For your information however, the action of safeguarding the ice and the open water that is created comes under the Criminal Code of Canada (excerpt):
Duty to safeguard opening in ice
Sec. 263. 1 Every one who makes or causes to be made an opening in ice that is open to or frequented by the public is under a legal duty to guard it in a manner that is adequate to prevent persons from falling in by accident and is adequate to warn them that the opening exists.
(3) Every one who fails to perform a duty imposed by subsection 1 is guilty of
- manslaughter, if the death of any person results therefrom;
- an offence under section 269, if bodily harm to any person results therefrom; or
- an offence punishable on summary conviction.
Unlawfully causing bodily harm
Sec. 269. Every one who unlawfully causes bodily harm to any person is guilty of
- an indictable offence and liable to imprisonment for a term not exceeding ten years; or
- an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
What does this mean?
According to OPP Sergeant Larry Butterfield, it is not a criminal offence to operate a bubbler and there is no law that defines what is “adequate to prevent persons from falling in by accident and is adequate to warn them that the opening exists.” This means there is nothing the police can do about excessive bubbling, or lack of cautionary warnings. However, in the event someone is fatally injured a charge of manslaughter may be brought forward if, in the opinion of the investigating officer(s), a charge is warranted.
There is also the question of liability if someone suffers bodily harm. Property owners, contractors and/or property managers who have installed and/or maintain the bubbler system can be equally vulnerable to civil litigation. Conversations with a local insurance provider revealed that any incident would be reviewed independently and liability insurance coverage for damages awarded by a civil court may not apply. However, for the insurance companies, it is challenging situation. On one hand, the use of bubblers prevents high cost payouts for damage caused by ice (although not all insurance companies provide this coverage). On the other is the potential risk for personal injury claims. The onus is clearly on the property owner to fully understand their insurance policy coverage and use their best judgment when deciding whether or not to install a bubbler system.
Use common sense.
In a recent article in Cottage Life Magazine, Bob Island, Publisher, Snowmobile Central Ontario Magazine suggested there are steps that can be taken by property owners to reduce their liability. Signage that designates “Danger: Open Water” that can be easily read from a distance and an amber flashing light that is visible in the dark. (Some cottagers use red lights to indicate open water; however, in the dark, these lights can be mistaken for the taillight of a snowmobile, so Bob cautions against those). Install timers and thermostats to minimize impact, and reduce costs. And once the water level is lowered in early March, bubblers can be turned off.
The bottom line is this. There is no law against operating a bubbler, there is no law regarding what is adequate warning and there is no legal means to control the interference with lake access that often results from excessive bubbling. However, there could be serious criminal and civil implications if someone gets hurt or dies.
Exercise good judgment, know your coverage and be respectful of everyone who uses or plays on the ice in the winter.