IN THE MATTER OF the Employment Insurance Act,
S.C. 1996, c. 23
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IN THE MATTER OF a claim for unemployment benefits by
Roger J. Landry
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IN THE MATTER OF an appeal by the Claimant
from a decision of the Board of Referees given on
October 16, 1997 at Moncton, New Brunswick
DECISION
Appeal heard at Moncton, New Brunswick on January 28, 1999
THE HON. R. C. STEVENSON, UMPIRE
Mr. Landry appeals from the decision of a Board of Referees dismissing his appeal from a Commission ruling that he was disqualified from receiving unemployment benefits because he had voluntarily left his employment with Caloritech Inc. in Orillia, Ontario without just cause.
Mr. Landry, now 51 years of age, is a native of the Moncton area and has been a self-employed performing country musician for most of his working life. In 1984 or 1985 he moved to western Canada and performed there until 1994. In that year he was diagnosed with diabetes. His doctor advised him to change his life style and follow a more normal routine of work, rest and diet. His children lived in Orillia. His son helped him get employment there in a manufacturing plant. The work involved 10-hour shifts and required Mr. Landry to be on his feet for long periods. In his written submission to the Board of Referees Mr. Landry said:
After two years, this physically demanding work was leaving me with swollen feet and unable to do any other activities between shifts. I consulted my doctor again and he confirmed that my medical condition was caused by my diabetes and the working environment.
This situation resulted in my becoming depressed but with the help and encouragement of my family I started to explore alternatives. My contacts in the music industry in New Brunswick assured me that with the large number of new Restaurants and Clubs in the Moncton area, the demand for musicians was very good.
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My brother Oscar Landry, residing in the old homestead in Cap-Pele, was at the time self-employed in the construction industry in siding, windows and doors. He assured me that he could provide me employment for the short duration while I reestablished myself. With that assurance from family and friends, my wife and I moved back home.
Mr. Landry left his job in Orillia on June 26, 1997 and came to Moncton. When he arrived he discovered that his brother's business was not thriving and his brother had no work for him. He then applied for unemployment benefits, something he had not intended to do.
The Board of Referees said:
The claimant advised that he left this employment because he had to stand on his feet for long period (sic) and he found this troublesome. He stated that he had diabetes and this contributed to his problem.
When questioned, he stated that he thought he had a job with his brother in the siding business. When he arrived on July 4, he discovered that his brother's business could not employ him.
It should be noted that although the claimant states that he had health problems, he failed to consult a doctor concerning his medical problems.
REASONING AND FINDINGS OF THE BOARD:
The claimant stated that he hoped to get back into the music business in the Moncton area. Furthermore, on leaving his employment, he indicated he wanted to return to the east coast.
Although the claimant did make contact with his brother, it seems evident that he did not have a firm offer of employment nor did he offer any medical problems to support his case.
I think the Board intended to say that Mr. Landry had not offered any medical reports to support his case. The Board of Referees ignored Mr. Landry's statement in his written submission that he had consulted with his doctor who had confirmed that his condition was caused by his diabetes and the working environment. In essence the Board based its decision on an erroneous finding of fact that it made without regard fro the material before it.
In the case of Brisebois v. Canada Employment and Immigration Commission, [1997] F.C.J. No. 90 (QL); Appeal file No. A-510-96, a 59 year old claimant found the employment she had accepted in a restaurant too demanding physically and that working constantly in a standing position gave her sore feet. She was not relying on illness but only on the physical effect of the working conditions to justify her leaving the job. The Federal Court of Appeal overruled both the Board of Referees and the Umpire and said that since her credibility was not questioned a medical certificate would have added nothing to her testimony. The court effectively allowed her claim.
In the present case Mr. Landry's credibility as to his diabetes and the effect of long periods on his feet at work is not questioned. He has now produced evidence that he was diagnosed with diabetes in 1994. He has also submitted a letter from his brother confirming that he had told Roger in May 1997 that he would be able to employ him for the summer while he reestablished himself in the music business. The evidence is admissible under the principles stated by the Federal Court of Appeal in Dubois v. C.E.I.C., [1998] F.C.J. No. 768 (QL); Appeal file No. A-728-97.
It is common knowledge that diabetes often causes circulatory problems in the lower extremities. The Board of Referees erred in law in ignoring the uncontradicted evidence as to the effects of the physical demands of the job in Orillia. I see no need to send the matter back for re-hearing. Mr. Landry's physical condition by itself left him with no reasonable alternative to leaving his employment, i.e. he had just cause to leave.
The appeal is allowed and the disqualification is set aside.
RONALD C. STEVENSON
Umpire
FREDERICTON, NEW BRUNSWICK
February 11, 1999