Question: Try the exercises below. Are these decisions reasonable? Try 2 out of 3.

Exercise #1 -Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75

[1] On December 24, 2007, a guest at Blue Mountain Resorts died while swimming in an unattended indoor pool at the resort. The issue on this appeal is whether Blue Mountain was required [page323] to report this "guest injury" to the Ministry of Labour on the basis that it was a death or critical injury incurred by a person at a workplace as contemplated bys. 51(1) of theOccupational Health and Safety Act, R.S.O. 1990, c. O.1.

[2] Blue Mountain takes the position that it is not required to report deaths or critical injuries to guests at its recreational facility because the facility is not predominantly a workplace and a worker was not present at the site when the injury incurred. However, the respondent, Mr. Den Bok -- an inspector under the Act -- took the view that reporting was required, and issued an order to that effect, along with other related orders. The Ontario Labour Relations Board upheld the order.

[3] An application for judicial review from that order was dismissed by the Divisional Court. It found the board's determination that the swimming pool was a "workplace" to be reasonable. The board inferred that employees of Blue Mountain must have been present at other times in the pool area in order to check and maintain it. Similarly, the Divisional Court accepted that "it is common ground that the swimming pool is a place where one or more workers work".

[...]

[7] The relevant provisions of the Act are the following:

Definitions

1(1) In this Act, . . . . . [page324]

"employer" means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services;

"worker" means a person who performs work or supplies services for monetary compensation but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program;

"workplace" means any land, premises, location or thing at, upon, in or near which a worker works; . . . . .

Notice of death or injury

51(1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.

Preservation of wreckage

(2) Where a person is killed or is critically injured at a workplace, no person shall, except for the purpose of, (a) saving life or relieving human suffering; (b) maintaining an essential public utility service or a public transportation system; or (c) preventing unnecessary damage to equipment or other property,

interfere with, disturb, destroy, alter or carry away any wreckage, article or thing at the scene of or connected with the occurrence until permission so to do has been given by an inspector. . . . . .

Powers of inspector

54(1) An inspector may, for the purposes of carrying out his or her duties and powers under this Act and the regulations, (a) subject to subsection (2), enter in or upon any workplace at any time without warrant or notice; (b) take up or use any machine, device, article, thing, material or biological, chemical or physical agent or part thereof; (c) require the production of any drawings, specifications, licence, document, record or report, and inspect, examine and copy the same; . . . . . [page325] (i) require that a workplace or part thereof not be disturbed for a reasonable period of time for the purposes of carrying out an examination, investigation or test[.]

[8] The word "person" is not defined in the Act.

[9] Blue Mountain Resort Limited owns and operates an all- season resort and recreational facility, located on a 750- acre property near Collingwood, Ontario. The resort offers 36 downhill ski runs and other recreational facilities, including mountain biking trails, a golf course and an indoor swimming pool.

[10] When the deceased guest was first found, a defibrillator was used in an attempt to revive him; it showed no electrical signal and Blue Mountain therefore assumed the guest had suffered a heart attack. As it turned out, he had simply drowned while swimming in the pool.

[11] The pool was unsupervised and intended for use by resort guests for recreational purposes. No Blue Mountain employees were working there at the time the drowning occurred.

[12] In her reasons, the board member acknowledged that she had "heard no evidence as to the work done by the employees of Blue Mountain within the enclosed area of the indoor swimming pool where the guest drowned . . . [and no evidence] . . . as to how regularly employees go into this area . . . or how many employees enter this area". "Based on general and common knowledge," however, she inferred "that at least one and perhaps more Blue Mountain employees must enter the enclosed area of the indoor swimming pool in order to clean the pool and check the water at least once, and likely more times, each day." She therefore concluded that "[t]he swimming pool thus comprises a part of at least one Blue Mountain employee's workplace", and that "[i]t does not cease to be a 'workplace' because the employee in question moves from that area of his or her workplace to another area of the same workplace".

[13] Much evidence before the board -- and much argument here and below -- were dedicated to the broader implications of Mr. Den Bok's reporting order for Blue Mountain's ski operations and for recreational facilities in general in the Province of Ontario. Conservation Ontario was granted leave to intervene below and Tourism Industry Association of Ontario was subsequently granted leave to intervene in this court because of the perspectives they bring to those broader concerns.

[...]

[15] In peak season, Blue Mountain employs 1,750 staff. In February, it may have as many as 16,000 visitors on a Saturday and another 10,000 on a Sunday. The evidence was that there are approximately 1.5 skiing-related incidents for every 1,000 visitors at Blue Mountain (the industry average is two incidents per 1,000 visitors). It follows that there could be as many as 39 occasions on a February weekend where -- if inspector Den Bok's approach is to be adopted -- Blue Mountain could be required to report to the ministry. As the appellant and the intervenors point out, s. 51(2) of the Act prohibits the employer from disturbing or altering the scene of the occurrence until permission is given by an inspector. Therefore, many ski slopes may have to be closed entirely or in part until released by a ministry inspector.

[16] Mr. Den Bok's evidence was that in most cases, such a release will be provided by telephone but, if not, within a couple of hours if an inspector had to attend the site. However, the evidence was that such closures would create potential hazards for skiers and snowboarders using the runs in winter and for mountain bikers in the summer, as well as disruptions to Blue Mountain's operations generally.

[17] A representative of the Ontario Snow Resorts Association testified before the board. His evidence was that there were approximately 7,000 accidents at ski resorts across Ontario during the 2007-2008 ski season. His concern was that ski patrollers do not have the training to diagnose whether an injury is "critical" or not and that, in many cases, there is no way of making that determination at the time of the incident. Failure to report, however, could lead to prosecution under the Act. He repeated the concern that the requirement to preserve the accident scene under s. 51(2) would make ski hills very dangerous and difficult for resorts to operate.

[18] The ministry's requirement that resorts report "guest injuries" is apparently new. Blue Mountain has been subject to the ministry's review for 27 years, but has never before been required to report such injuries. The same is true for other resorts. The ministry explained its shift in policy by saying it was due to a number of resorts appearing in its high-risk category.

[19] Here, the guest injury occurred in a swimming pool, not on the slopes.

[...]

[30] The central thrust of the board's reasoning is found at paras. 61 and 75 of its reasons:

[T]he purpose of the Act is to provide protection to workers . . . where workers are vulnerable to the same hazards and risks as non-workers who attend at a workplace, it is not an absurd result for an employer to be required to report when a non-worker suffers a critical injury at a workplace . . . . If the goal is to enhance worker safety by alerting the Ministry to hazards in the workplace that could affect workers, a provision that requires the reporting of critical injuries suffered by non-workers in places where workers work, regardless of whether a worker was present at the time and place of the critical injury, is not absurd. . . . . .

Blue Mountain is a fixed workplace. There is a fixed location to which employees regularly report . . . . The area of the resort where the Blue [page329] Mountain employees perform their work functions is a "workplace" . . . The fact that an employee is not physically present within a section of that "workplace" does not mean that that particular section is not part of the "workplace" during the period when no employees are present.

[41] Mr. Den Bok acknowledged that if there were a critical injury to a hockey player or a spectator during a Toronto Maple Leaf hockey game at the Air Canada Centre, it would have to be reported to the ministry. If the injury occurred on the ice, the hockey game would have to be shut down -- televised or not -- until the premises were released by a ministry inspector. He took the same position with respect to a wide variety of other circumstances. For instance, he took the view that reporting to [page331] the ministry would be mandatory in the case of customer injuries at a Canadian Tire store or other retail outlet; in the case of injuries sustained by the public on highways patrolled by police (because the police or other workers may arrive after the accident, or may have passed by on a prior occasion); and in the case of worshippers who may suffer a heart attack or other critical injury at a religious institution (whether the services would have to be halted pending ministry release of the place of worship, was left unsaid).

Exercise #2 -Canada (Attorney General) v. Heffel Gallery Limited, 2019 FCA 82

1. In 1892, the French-born impressionist painter, Gustave Caillebotte, produced "Iris bleus, jardin du Petit Gennevilliers" (Iris bleusor the Painting), an oil on canvas, 21" x 18". Little did he know that some 127 years later,Iris Bleus would be at the heart of the present appeal.
2. The facts surroundingIris bleus are not in dispute and can be described as follows.
3. On November 23, 2016, the Painting was sold by the Toronto-based Heffel Fine Art Auction House (Heffel or the respondent) to a commercial gallery based in London, England for the sum of $678,500 CAD. Prior to this auction sale, the Painting had been owned and held by a private Canadian collector for the past 60 years.
4. The day after the auction sale, on November 24, 2016, Heffel applied to the Department of Canadian Heritage for a cultural property export permit in order to send the Painting to its purchaser in England.
5. On December 19, 2016, a permit officer sent Heffel a written Notice of Refusal to issue the requested permit, following the recommendation of the Chief Curator of the Art Gallery of Greater Victoria, an expert examiner.
6. On January 13, 2017, following the refusal of the permit officer, Heffel requested a review of that decision before the Canadian Cultural Property Export Review Board (the Board). This review proceeded before a seven-member panel of the Board, although the Federal Court erroneously refers to a three-member panel at paragraph 6 of its decision.
7. On July 13, 2017, the Board rendered its decision and rejected Heffel's export permit application. It did so essentially for three reasons:Iris bleus was on theCanadian Cultural Property Export Control List, C.R.C., c. 448 (theControlList); it was of "outstanding significance" pursuant toparagraph 11(1)(a) of theCultural Property Export and Import Act, R.S.C., 1985, c. C-51 (theAct); and, it was of such a degree of "national importance" that its export would significantly diminish the national heritage pursuant toparagraph 11(1)(b) of theAct.

[...]

1. For the purpose of the present appeal, the following overview of the legislative framework of theAct is apposite prior to turning to the analysis of the issues on appeal.
2. In 1977, Parliament enacted theAct implementing the UNESCOConvention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970, 823 UNTS 231 (entered into force 24 April 1972). The Act seeks to preserve the national heritage in Canada through a system of export controls and tax incentives ultimately designed to encourage Canadians to donate or sell significant objects to cultural organisations.
3. The Act achieves its objectives first and foremost through the Control List which pursuant tosection 4 of theAct is established by the Governor in Council. The Control List sets forth objects or classes of objects, the export of which the Governor in Council deems necessary to control in order to preserve the national heritage in Canada. In order to be included on the Control List, an object must be at least fifty years old and its creator (assuming the object was created by a natural person) must be deceased (theAct,subsection 4(3)).The Control Listcovers a wide array of objects organized by groups. Specifically, objects of fine art, including paintings, are listed in Group V of the Control List.
4. Subject to limited exceptions, when a permit officer receives an application for an export permit, the permit officer must determine if the object is included in the Control List(theAct,subsection 8(1)). In the event it is not, the permit officer must issue an export permit in respect of the object (theAct,subsection 8(2)). However, in the event the permit officer determines that the object is or might be on the Control List,the permit officer must refer the application to an expert examiner (theAct,subsection 8(3)).
5. The expert examiner is required to determine whether the object in question is included in the Control List.If so, the expert examiner is required to further determine (i) whether the object is of "outstanding significance" by reason of its close association with Canadian history or national life, its aesthetic qualities, or its value in the study of the arts or sciences; and (ii) whether the object is of such a degree of "national importance" that its loss to Canada would significantly diminish the national heritage (theAct,subsection 11(1)). This two-part test is colloquially called the "OS/NI framework".Subsection 11(1), more particularlyparagraph 11(1)(b), is the provision at issue in this appeal. For convenience, the provision is set out below and reads as follows:

Where object included in Control List	Objet appartenant la nomenclature
11 (1) Where an expert examiner determines that an object that is the subject of an application for an export permit that has been referred to him is included in the Control List, the expert examiner shall forthwith further determine	11 (1) Aprs constat de l'appartenance la nomenclature de l'objet soumis son examen, l'expert-vrificateur apprcie sans dlai si cet objet :
(a) whether that object is of outstanding significance by reason of its close association with Canadian history or national life, its aesthetic qualities, or its value in the study of the arts or sciences; and	a) prsente un intrt exceptionnel en raison soit de son rapport troit avec l'histoire du Canada ou la socit canadienne, soit de son esthtique, soit de son utilit pour l'tude des arts ou des sciences;
(b) whether the object is of such a degree of national importance that its loss to Canada would significantly diminish the national heritage.	b) revt une importance nationale telle que sa perte appauvrirait gravement le patrimoine national.

1. If the expert examiner is not satisfied that the object at issue meets both the "outstanding significance" and the "national importance" criteria, the expert examiner must advise the permit officer to issue an export permit (theAct,subsection 11(2)). If, as in the present case, the expert examiner is satisfied that an object meets both criteria, the expert examiner must advise the permit officer not to issue an export permit and must provide reasons (theAct,subsection 11(3)). The permit officer thereafter must send the export permit applicant a Notice of Refusal, which includes the reasons of the expert examiner for the refusal (theAct,subsection 13(1)).
2. When an application for an export permit is refused, the applicant may request a review of the application by the Board (theAct,subsection 29(1)). The Board, in addition to the Chairperson and one member who are chosen from the general public, includes (a) members who are or have been officers, members or employees of art galleries, museums, archives, libraries or other collecting institutions in Canada; as well as (b) members who are or have been dealers in or collectors of art, antiques or other objects that form part of the national heritage (theAct,subsection 18(2)). A member from category (a) and (b) must both be present in order for quorum to be constituted (theAct,subsection 18(4)).
3. In undertaking its review of an application for an export permit, the Board is required to determine whether the object at issue is included on the Control Listand whether it meets the requirements of "outstanding significance" and "national importance" (theAct,subsection 29(3)). If all criteria are met, the Board may establish a delay period of two to six months in duration during which an export permit will not be issued. However, the Board may only establish a delay period if it is of the opinion that a fair offer to purchase the object might be made by an institution or public authority in Canada within six months; otherwise, the Board is required to direct that an export permit be issued immediately (theAct,subsection 29(5)).
4. Upon notification by the Board of a delay period, the Minister of Canadian Heritage and Multiculturalism advises institutions and public authorities of the object and the fact that a delay period has been established for them to make a fair offer to purchase the object (theAct,subsection 29(7)). Either the applicant for a permit or an institution or public authority that makes an offer to purchase the object can request that the Board determine the amount of a fair cash offer to purchase (theAct,subsection 30(1)). If the applicant rejects a fair cash offer, no export permit will be issued during a period of two years commencing as of the date the Notice of Refusal was sent (theAct,section 16).
5. The above sets forth a description of theAct as it relates to the operation of the export control mechanisms.It should be noted that in addition to these mechanisms, theAct operates in conjunction with provisions of theIncome Tax Act,R.S.C. 1985, c. 1 (5th Supp.) to provide incentives to taxpayers to dispose of cultural property to institutions and public authorities. In order to qualify for these incentives,the object must be certified by the Board. Currently, the Board applies the same OS/NI framework that it applies in determining whether to issue an export permit -i.e., whether the object is of "outstanding significance" and whether the object is of such a degree of "national importance" that its loss to Canada would significantly diminish the national heritage (theAct, paragraphs 29(3)(b),29(3)(c) andsubsection 32(1)).

[...]

1. The Board's Decision
   1. The Board's interpretation of "outstanding significance" atparagraph 11(1)(a) of theAct
2. First, the Board agreed with the expert examiner and the respondent, and determined that thePaintingwas included in Group V at paragraph 4(b) of the Control List(theAct, subsection 29(3)). Specifically, foreign paintings with no direct connection to Canada are controlled through Group V atparagraph 4(b).
3. Having made this determination, the Board then further determined thatIris bleus was of "outstanding significance" due to its aesthetic qualities, as expressly set out inparagraph 11(1)(a) of theAct. The Board also emphasized that, apart fromIris bleus, there is only one other work of art by Gustave Caillebotte that could be identified in a Canadian collection. The Board further underscored the importance of Gustave Caillebotte's work by referencing the fact that the Metropolitan Museum of Art in New York, "one of the great art museums in the world", is the owner of only one Gustave Caillebotte piece, which was acquired in 2014. Observing that the opportunities to view and study the work of Gustave Caillebotte in Canada remain very limited, the Board was of the view that the Iris bleus further met the criteria of "outstanding significance" for its value in the study of the arts (Board's decision at para. 33):

... Given the stature of the artist as one of the leading artists of French Impressionism, the importance of French Impressionism to understanding the history of art and to art practice today (including in Canada), and the fact that the Object is representative of works from late in the artist's career, the Review Board determines that the Object meets the criteria of outstanding significance for its value in the study of the arts.

1. The Board's reasons also addressed other considerations. For instance, the Board acknowledged in its decision that it was aware that its interpretation undersection 11 of theAct would also affect requests for certification undersection 32, and that a given interpretation could potentially limit the number of objects eligible for certification (Board's decision at paras. 25 and 30). While these comments were made in the context of the discussion on "outstanding significance" underparagraph 11(1)(a) and are not dispositive of this appeal, it can be inferred that these considerations affected the Board's interpretation ofsubsection 11(1) in general and its application to the Painting.
2. The Board's interpretation of "national importance" atparagraph 11(1)(b) of theAct
3. The final aspect of the Board's analysis was to determine pursuant toparagraph 11(1)(b) whether the Painting was of such a degree of "national importance" that its loss to Canada would significantly diminish the "national heritage". This aspect of the Board's decision regardingparagraph 11(1)(b) was the only one at issue on judicial review before the Federal Court. In this appeal, we are thus solely concerned with the Board's interpretation ofparagraph 11(1)(b) of theAct.
4. In this regard, the seven members of the Board formed the view that a given object can meet the degree of "national importance" even if the object or the creator has no direct connection with Canadian history or Canada. The Board stated the following at paragraph 40:

The Review Board is of the view that an object can meet the degree of national importance required by theAct even if the object or the creator has no connection to Canada. Canada is a diverse country with a multitude of cultural traditions. The loss of an object to Canada could significantly diminish the national heritage if that loss would deny a segment of the population exposure to or study of their cultural traditions or the cultural traditions of other Canadians. ...

1. In reaching its conclusion, the Board relied expressly on theGuide to Exporting Cultural Propertyfrom Canadaof the Department of Canadian Heritage which lists a number of factors that the Board can consider in determining the "national importance" of an object (Published June 2015, online: https://www.canada.ca/content/dam/pch/documents/services/movable-cultural-property/export_permit_application_guide-eng.pdf at p. 27):

For the purposes of theAct, national heritage includes cultural property that originated in Canada, or the territory now known as Canada, as well as significant examples of international cultural property that reflects Canada's cultural diversity or that enrich Canadians' understanding of different cultures, civilizations, time periods, and their own place in history and the world.

1. The Board thus concluded, unanimously, that the loss ofIris bleus would significantly diminish the national heritage:

[46] In view of the provenance of the Object, the condition of the Object, the rarity of works of the artist in Canadian collections, the research value of the Object, and the fact that the Object is a highly desirable example of Impressionist landscape painting, the Review Board determines that the loss of the Object to Canada would significantly diminish the national heritage.

1. Having reached this conclusion, the Board also considered whether an institution or public authority in Canada might make a fair offer to purchaseIris bleus within six months. Given the outstanding significance of the Painting, the rarity of Gustave Caillebotte's work in Canada, and the artist's important place in the French Impressionism movement, the Board determined that there would be considerable interest in acquiringIris bleus. The Board also noted the expert examiner's evidence that three Canadian curators of European art had indicated that they would like to see the Painting remain in Canada and that their institutions would be able to purchase it. As provided for by theAct, the Board therefore established a delay period of six months during which it would not direct that an export permit be issued (Board's decision at paras. 50, 51 and 59).

[...]

1. From the outset, in reaching the conclusion that the Painting at issue is of "national importance", the Board did not merely rely on the fact enunciated in theGuide to Exporting Cultural Property from Canada -i.e., that Canada is a diverse country. The Board was more nuanced than the respondent contends. It discussed "the provenance of the object, the impact of its creator, its origin, its authenticity, its condition, its completeness, its rarity or uniqueness, its representativeness, its documentary or research value, as well as contextual associations that it may have." (Board's decision at para. 38). More specifically,the Board made the following findings rooted in its factual appreciation:
2. Iris bleus came from the inventory of an important dealer (Ambroise Vollard of Paris, France) who figured amongst the most important dealers of French contemporary art in the 20^th century, including the work of French Impressionists (para. 41);
3. Interest in the work of Gustave Caillebotte was rediscovered in the mid-1960s and his work has been reassessed over the last 20 years (para. 42);
4. Iris bleusis only the second work of Gustave Caillebote in Canada. It is a unique work of art and the only work representative of the series depicting flowers and having symbolic significance that were created by the artist late in his life (para. 43);
5. Given its rarity,Iris bleus will be of considerable interest and importance for research in Canada with respect to French impressionism (para. 44).

Exercise #3 -Sharif v. Canada (Attorney General), 2018 FCA 205 // Sharif v. Canada (Attorney General), 2017 FC 1069

[1] This is an application for judicial review of a decision made by the Independent Chairperson of the Warkworth Institution Disciplinary Court on December 6, 2016, convicting the Applicant of a disciplinary offence contrary toparagraph 40(h) of theCorrections and Conditional Release Act, SC 1992, c 20 [CCRA], and sentencing him to a $30 fine.

I. Background

[2] The Applicant, Abubakar Sharif, is an inmate at Warkworth Institution in Ontario. On September 25, 2016, he was involved in an altercation with Correctional Officer Ethridge in the dining hall at Warkworth Institution. This altercation became physical, resulting in the Applicant being charged with a disciplinary offence contrary toparagraph 40(h) of theCCRA, which provides that: "An inmate commits a disciplinary offence who... fights with, assaults or threatens to assault another person."

[3] At the time of the altercation on September 25, 2016, the Applicant was suffering from a knee injury and required the use of crutches to walk. Because of his injury, the Applicant went to the front of the food line to pick up his meal. The Applicant claims he had been permitted by staff to go directly to the front of the line on a daily basis due to his injury. On this day though, Officer Ethridge instructed the Applicant to return to the back of the line. The Applicant told Officer Ethridge he was not able to stand in line because of his injury and that he had been accommodated in the past. Officer Ethridge instructed the kitchen staff not to pass out any more meals until the Applicant complied. The Applicant refused to do so. The Applicant then took a food tray from another inmate, which prompted Officer Ethridge and a second officer to approach the Applicant who moved and held the tray away from them. According to Officer Ethridge, the Applicant bumped him with his chest several times. Officer Ethridge then seized the tray from the Applicant's hands, and the Applicant fell to the floor. At this point, there was a disturbance among the other inmates in the dining hall, with some inmates referring to Officer Ethridge as a "goof."

The charge, as particularized, alleges that Mr. Sharif "was given several direct orders to enter [a] food line from the rear" but was "physically uncooperative," refused "direction" and bumped a corrections officer "several times with his chest."

[4] At the hearing before the Independent Chairperson, the Applicant's legal counsel argued that the Warkworth Institution had not proven beyond a reasonable doubt that the Applicant had assaulted Officer Ethridge. The Applicant acknowledged during the hearing that he had disobeyed instructions and had been trying to keep the food tray out of Officer Ethridge's reach. The Applicant referred to video footage of the altercation which he claimed showed that Officer Ethridge had initiated physical contact with him, causing him to fall. With respect to the alleged chest bump, the Applicant stated at the hearing that Officer Ethridge had bumped him with his chest, not vice-versa.

II. Decision

[5] The Chairperson's decision was delivered orally at the conclusion of the hearing on December 6, 2016, and consists entirely of the following:

But the problem with that argument, counsel [that the Institution had not proven its case beyond a reasonable doubt that Mr. Sharif did in fact assault the Officer], is that Mr. Sharif has admitted that he was attempting to keep the tray out of the Officer's reach, which in my view, invites physical contact either by Mr. Sharif or by the Officer. This was obviously an explosive situation, which became even more so when Mr. Sharif fell. Whether accidentally or how that happened I could not tell from the video, but there is no doubt in my mind that Mr. Sharif was attempting to keep the tray from the Officer, and the Officer was attempting to get the tray, because in his view, it was not appropriate for him to have it. In these circumstances, I think the charge is made out.

[6] The Chairperson sentenced the Applicant to a $30 fine, with $10 imposed and $20 suspended for a period of 60 days.

[...]

The reported cases concerning paragraph 40(h) all suggest the paragraph addresses acts of physical aggression:Zanth v. Canada (Attorney General),2004 FC 1113, 259 F.T.R. 28;Young-Taillon v. Canada (Attorney General),2016 FC 1158;Lemoy v. Canada (Attorney General),2009 FC 448;Dutiaume v. Canada (Attorney General),2008 FC 990.

[...]

Relevant Provisions of the Act:

Purpose of disciplinary system

38 The purpose of the disciplinary system established by sections 40 to 44 and the regulations is to encourage inmates to conduct themselves in a manner that promotes the good order of the penitentiary, through a process that contributes to the inmates' rehabilitation and successful reintegration into the community.

Disciplinary offences

40 An inmate commits a disciplinary offence who

• (a) disobeys a justifiable order of a staff member;
• (b) is, without authorization, in an area prohibited to inmates;
• (c) wilfully or recklessly damages or destroys property that is not the inmate's;
• (d) commits theft;
• (e) is in possession of stolen property;
• (f) is disrespectful toward a person in a manner that is likely to provoke them to be violent or toward a staff member in a manner that could undermine their authority or the authority of staff members in general;
• (g) is abusive toward a person or intimidates them by threats that violence or other injury will be done to, or punishment inflicted on, them;
• (h) fights with, assaults or threatens to assault another person;
• (i) is in possession of, or deals in, contraband;
• (j) without prior authorization, is in possession of, or deals in, an item that is not authorized by a Commissioner's Directive or by a written order of the institutional head;
• (k) takes an intoxicant into the inmate's body;
• (l) fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55;
• (m) creates or participates in
  • (i) a disturbance, or
  • (ii) any other activity

that is likely to jeopardize the security of the penitentiary;

• (n) does anything for the purpose of escaping or assisting another inmate to escape;
• (o) offers, gives or accepts a bribe or reward;
• (p) without reasonable excuse, refuses to work or leaves work;
• (q) engages in gambling;
• (r) wilfully disobeys a written rule governing the conduct of inmates;
• (r.1) knowingly makes a false claim for compensation from the Crown;
• (r.2) throws a bodily substance towards another person; or
• (s) attempts to do, or assists another person to do, anything referred to in paragraphs (a) to (r)