Employment Insurance (EI)

Persons in attendance

Mr. R., T., the Claimant attended the hearing.

Decision

[1] The Social Security Tribunal (the Tribunal) finds that an indefinite disqualification should be imposed because the Claimant failed to prove he had just cause for leaving his employment under sections 29 and 30 of the Employment Insurance Act (the Act).

Introduction

[2] On December 8, 2013 the Claimant made an initial claim for employment insurance benefits (EI). On February 21, 2014 the Canada Employment Insurance Commission (Commission) denied the Claimant benefits because he voluntarily left his employment. On November 9, 2014 the Claimant made a request for reconsideration. On July 9, 2014 the Commission maintained their original decision and the Claimant appealed to the Tribunal.

Form of hearing

[3] After reviewing the evidence and submissions of the parties to the appeal, the Tribunal decided on an in person hearing for the reasons provided in the Notice of Hearing dated October 17, 2014.

Issue

[4] The Tribunal must determine if an indefinite disqualification should be imposed because the Claimant voluntarily left his employment without just cause within the meaning of the Act.

The law

[5] Subsection 29 (c) of the Act states that just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regards to all the circumstances.

[6] Subsection 30 (1) of the Act provides for an indefinite disqualification when the claimant voluntarily leaves his employment without just cause.

Evidence

[7] A letter dated December 16, 2013 from the Claimant to the employer regarding discrepancies in his record of employment (ROE). The Claimant indicates the ROE code should be “N” to reflect he was on a leave of absence to rectify his situation with the Manitoba Public Insurance Corporation (MPIC). As of December 7, 2013 he had informed the employer of MPIC’s actions he was unable to continue his employment as a truck driver terminating his livelihood (GD2-11).

[8] A letter to Honorable Peter MacKay from the Claimant indicates his concerns within the said government departments (GD2-12 to GD2-15).

[9] A letter dated May 12, 2014 from Maintenance Enforcement Program notified the Claimant of Federal License Denial/Suspension (GD2-16 to GD2-18).

[10] A letter dated May 16, 2014 from Maintenance Enforcement Program the Claimant that his license was being suspended (GD2-22).

[11] A Manitoba Health Registration indicates the Claimant’s name and an address of PO Box, X, Manitoba XXX XXX (GD2-61 to GD3-62).

[12] A letter dated November 13, 2013 from Manitoba Health to the Claimant notified him that his Manitoba Health registration number was cancelled due to his moving to a new address without notifying their office. The letter requests the Claimant to complete and return the enclosed Manitoba Health Registration Application Form and a Residence Report Form so that they may determine his eligibility for health coverage. The letter provides a self-addressed stamped envelope, as well provides other alternatives in submitting the forms (GD2-63 to GD2-64).

[13] A letter dated December 3, 2013 from MPIC to the Claimant indicates his failure to furnish a medical report by August 31, 2013 has resulted in a Driver’s License Declass as of December 3, 2013 (GD2-82).

[14] A record of employment (ROE) Serial Number S08365170 indicates the Claimant was employed with Serpreco Systems from June 16, 2008 to December 6, 2013 when he quit his employment (GD3-12).

[15] An amended ROE Serial Number S08300034 replaces S08365170 to reflect the change of address (GD3-14).

[16] On February 19, 2014 the employer stated to the Commission the Claimant told them he received a letter from MPIC and his class 3 licenses was suspended and that he would have to quit. The Claimant drove a garbage truck. The employer stated they asked the Claimant to bring in the letter and they would try and help him out as he had had other employees in the past in similar situations. He stated the Claimant wasn’t willing to explain the suspension or provide the letter in order for the employer to help him out. The Claimant didn’t want help so they could not continue his employment (GD3-16).

[17] On February 19, 2014 the Claimant stated to the Commission that he had no choice but to leave. His employer couldn’t help him because he didn’t even know what was going on. He stated that MPIC had cancelled his health card and he was not able to get his physical required for his class 3 licenses. He stated he’s been trying to figure it out since he got a letter saying he was due for a physical by August 31, 2013.  The Claimant stated he contacted Manitoba Health who stated he must have moved. He stated he supplied Manitoba Health with his new address and doesn’t know why they didn’t reinstate his health number at that time. He then received a letter in November stating his number had been cancelled. He stated he can’t do his job without a class 3 license; he needed to sort it out because he needed his health card and license to work. He told his employer he didn’t know how long it would take and if he had to find someone to replace him he understood (GD3-17).

[18] On February 20, 2014 the Claimant stated to the Commission that the walk in clinic he went to wouldn’t provide him with a physical because he didn’t have a medical card. He stated he only went to one clinic. The Claimant stated he didn’t fill out the forms to reinstate his Manitoba Health number because the government in Manitoba is corrupt. He stated because his brother has criminal charges against him, the government is making it difficult for him. The Claimant stated he didn’t think his employer could help him and he thinks his employer is working with the government. He stated he didn’t fill out the forms because the government could determine his coverage without the information they needed and the letter indicates they just wanted updated information from him in order to determine his eligibility. He stated he doesn’t know why they cancelled his number and they had his information (GD3-25).

[19] On April 14, 2014 the Commission contacted the Claimant regarding his ministerial enquiry. The Commission advised the Claimant that there were no new facts that would change the decision he was disqualified from receiving EI benefits because he did not show just cause for leaving his employment. The Claimant was advised of his right to submit a formal request for reconsideration (GD3-86).

[20] On July 4, 2014 the Claimant stated to the Commission the government of Manitoba screwed him and cancelled his health card and because of that he could not get his physical to maintain his class 3 drivers’ license. He stated his employer didn’t want to deal with him anymore because of the maintenance payments that were needed to be deducted off his paychecks. He stated he didn’t quit but took a leave of absence. He stated he sent the letter to his employer on December 16, 2013 asking for the leave. The Claimant stated he sat down with his employer and discussed the situation and the employer asked if he needed a lawyer but he felt it would be too expensive. He didn’t believe his employer was offering to pay for a lawyer but rather refer him to one. The Commission provided the Claimant with an explanation on leave of absence and voluntary leave. The Claimant stated he didn’t have his medical situation dealt with because Manitoba Health wanted addresses for the last five places he lived and he is not going to give them anything. The Claimant stated he is now unemployable because of everything that has happened. He stated they have now taken away his regular driver’s license and have cancelled his vehicle registration (GD3-87 to GD3-88).

[21] On July 4, 2014 the employer stated to the Commission the Claimant told him he was quitting because his class 3 licenses had been suspended because he didn’t supply a medical. He stated the Claimant didn’t ask for a leave of absence, he just quit. The employer disputed the Claimant had come in and sat down with him. He came in, said he was quitting. The employer stated he wanted him to stay because he had been employed with them for so long. The Claimant’s leaving left them shorthanded. He stated he was willing to do anything to help the Claimant but he didn’t want anything to do with it. He asked the Commission to speak with the office manager to confirm (GD3-89).

[22] On July 9, 2014 the office manager stated to the Commission that on Sunday, December 8, 2013 the general manager (GM) received a text from the Claimant that he needed Monday off to attend personal matters. The Claimant came in on Monday and said he received a letter from MPIC and they had pulled his class 3 license. She stated she asked the Claimant if his license was pulled because of Family Maintenance but he said he was all up to date and doesn’t know why they did. She stated they asked the Claimant for a copy of the letter from MPIC so they could see if there was anything they could do for him. The Claimant came in the following day (Tuesday) dropped off the fuel card. The GM asked again to see the letter however the Claimant didn’t think they would understand.  The office manager stated wanted to help him because he was a great worker (GD3-90 to GD3-91).

[23] On October 27, 2014 the Claimant submitted additional representation to support his appeal (GD7-1 to GD7-13).

Submissions

[24] The Claimant submitted that:

1. a) His main issue is his health card which is still a stumbling block today.  He didn’t know why they cancelled it and to this day still doesn’t know the reason why or who cancelled it. He never knew it was cancelled until he had an abscessed tooth and when he went to get his prescription filled and was told his Manitoba Health number was cancelled. He doesn’t know when it was cancelled because he isn’t one to use the health care system. Nobody notified him of the cancellation;
2. b) Manitoba Health used the excuse his mail box was not correct.  The reason he had a mail box in the first place was because of what the justice system was doing to him. He stated that he had notified Manitoba Health when he got his mailbox number and there was no issue then. He never notified Manitoba Health when he changed his address;
3. c) He stated the reason his employer wouldn’t give him a leave of absence of because the employer would be responsible to pay his child support. If he quit they would be off the hook;
4. d) He has been dealing with his getting his health card back for over a year. In August he was notified he needed to provide MPIC with a physical. It was at that point he knew his card was cancelled;
5. e) He has misplaced the letter where he requested Manitoba Health as to why they cancelled his number. They should have notified him if they were going to cancel it and he should have been given an appeal option;
6. f) He stated that he did try and get the issue with his Manitoba Health number resolved because he called all kinds of government departments to find out why his number had been cancelled. He didn’t call Manitoba Health again;
7. g) No one will tell him what date his medical number was cancelled, they will not provide him with a reason why, and he doesn’t know why he can’t get a medical number now. Why does he have to supply 5 addresses;
8. h) He was sent a letter on November 2013 saying his health number had been cancelled. They had mailed returned but they shouldn’t have had mail returned. The box number he had was changed to a new location and he thought Canada Post would look after getting everything transferred over. After his box number was changed to the new location h started changing his address as he went along;
9. i) He didn’t provide Manitoba Health with their request of completing the forms or with an address for 5 years because he didn’t have one. He doesn’t understand this whole thing. According to the law you can’t cancel a health card unless you are in another country;
10. j) He wouldn’t fill out the forms requested from Manitoba Health because he wanted a reason why they cancelled it in the first place. His health card doesn’t say he has to change his address. It only says you have 3 month if you leave the province;
11. k) He told Manitoba Health they had his information and they didn’t need anything else. He wasn’t going to give them 5 addresses;
12. l) This all started with Manitoba Health when he started questioning the way family maintenance was handling his case;
13. m) He knew in August he needed his physical to keep his license, he knew he needed a health card and he never spoke to his employer about his situation. He thought he could get it all together before. The health system is corrupt;
14. n) His other issue was with getting his physical. He stated in the letter he received it stated that the physical had to be completed by his family doctor or a doctor who knows you personally. This became an issue because when he went to see his family doctor he was no longer there;
15. o) They wouldn’t tell him when the doctor would be back, he couldn’t see another doctor because they didn’t know him;
16. p) When he went to see his family doctor the receptionist told him his doctor was out of town but there was someone else who could see him but not without a medical number;
17. q) In August after he could not get in to see his family doctor he wrote to MPIC to tell him his situation, of no doctor or no health card so what was he to do. Nobody responded. What he was to do, he could have went to the hospital but they don’t do physicals;
18. r) He couldn’t go to a Walk In clinic because no doctor wants to put their name on the situation he was in. That’s why they want medical insurance so that they are covered;
19. s) On Dec 3rd he received notice that his license was declassified. He learned that he had been working with a class 5. He didn’t leave his job on his free will, he wanted to work.  If he had known his health card had been cancelled he would have done something about it. Nobody would get back to him and it wasn’t until he went to the federal level until he got some answers;
20. t) At that point it was too late to get everything in order. Sitting on the sidelines wondering what to do. He doesn’t know the legal system;
21. u) Once he found out his license was declassified he called his employer on December 8th to let him know he had a personal issue to deal with and then on December 9, 2013 he notified his employer license had been suspended. He didn’t know why, except for not getting his physical. He thought MPIC should have given him some grace but they didn’t do that;
22. v) When he went in on the Monday (December 9, 2013) the GM, who he answered to wasn’t in so he talked to the owner. The following day, the Claimant called the owner and stated that he needed a leave of absence. On Friday the Claimant met with the GM and he wanted to see the letter from MPIC. He stated he told the GM he would show him the letter once he got it back. He had given it to someone who knows about these kinds of things. He stated the GM told him if he wouldn’t show him the letter they would have to hire someone else;
23. w) He would be working if he had a medical number. This caused him a great deal of stress and high blood pressure;
24. x) The GM told him to give it to him now or you are out of here. The employer stated they had experience and knowledge about getting peoples licenses back but this is a lie.  They only offered to refer him to a lawyer. He gave evidence that he went to see a lawyer in 2008 and every lawyer he went to see, said this is too expensive. He tried to explain it to both the GM and employer that getting a lawyer would not work;
25. y) He stated the letter he received from MPIC was a personal confidential letter and before he went anywhere he wanted to make sure whatever the issue was he wanted to be able to explain it. He wasn’t planning on going on EI so he didn’t think his employer would need it with a leave of absence. He told the GM that he would keep him updated on things in a reasonable amount of time which he figured would be a week, but they didn’t give him that time;
26. z) After he ended up in the hospital with his high blood pressure he was told he would have to see his family doctor for follow up. He doesn’t understand when he contacted his doctor’s office and saw the replacement doctor he showed them his old health card and everything was fine;
27. aa) Would that have helped if he had of complied;
28. bb) He should have been notified earlier that he needed to go to a physical;
29. cc) He has paid into EI for 35 years and he should be able to collect;
30. dd) Nobody should have to go through what his has gone through because they cancelled his medical number. Manitoba Health is at fault; and
31. ee) He would like to extend a sincere apology to the agent whom he spoke to on July 4, 2014 for his rude remarks. He swore out of frustration (GD3-88).

[25] The Respondent submitted that:

1. a) The Claimant did not have just cause for leaving his employment because he failed to exhaust all reasonable alternatives prior to leaving;
2. b) A reasonable alternative would have been to take the necessary steps to obtain his health registration in order to provide the medical report necessary to obtain his license or to enlist the employer’s assistance in this regard; and
3. c) In response to the Claimant’s additional representation submitted (GD7-1 to GD7-13) the Commission maintains their decision.

Analysis

[26] The Tribunal must decide whether the Claimant should be disqualified pursuant to sections 29 and 30 of the Act because he voluntarily left his job without just cause. Subsection 29 (c) of the Act provides that an employee will have just cause by leaving a job if this is no reasonable alternative to leaving having regard to all the circumstances, is whether the claimant had a reasonable alternative to leaving his employment when he did.

[27] Under subsection 30 (1) of the Act, an employee is disqualified for receiving EI benefits if he loses his job as a result of misconduct, or voluntarily leaves his job without just cause.

[28] The Claimant disputes he had no choice but to leave however whether it is leave of absence or voluntary leave, the burden of proof is on the Claimant to prove that he had no reasonable alternatives to leave his employment when he did.

[29] The Claimant presents the argument that he had no choice to leave his employment when he learned his class 3 drivers’ license had been declassified to a class 5. He argued it was the fault of Manitoba Health because they had cancelled his health card which left him unable to obtain a medical physical required by MPIC to retain his class 3.

[30] The Tribunal finds from the evidence on the file and the Claimant’s oral evidence that he had ample time to him prior to receiving his notice that his license was being declassified, to straighten out the issue of his health card and obtain his physical in order to keep his license and maintain his employment.

[31] The Claimant’s oral evidence supports that he knew his health card had been cancelled before he went to obtain his physical for his driver’s license because he stated he learned his health number was not valid when he went to the pharmacy to obtain a prescription for an abscessed tooth. He further testified that he knew there were issues with his Manitoba Health number when he went to the doctor for his physical and he was told that his regular doctor wasn’t there but another doctor could see him, however not without a medical number. The Claimant’s further oral evidence that he knew his Manitoba Health number was cancelled when he stated after he was unable to obtain a physical he wrote a letter to MPIC to explain his situation with no medical and no doctor.

[32] The Tribunal finds the Claimant did not provide any evidence to support there were circumstances that would have prevented him from complying with Manitoba Health. His refusal to comply with The Health Services Insurance Act to determine his eligibility is a personal one and unfortunately personal reasons do not provide a claimant with just cause for leaving employment.

[33] The Tribunal finds the Claimant had reasonable alternative available to him that he refused to comply with. The Tribunal finds it would be a reasonable alternative to complete the forms requested by Manitoba Health which would then allow him to obtain his physical, which would allow him to retain a class 3 driver’s license and stay employed.

[34] The Tribunal finds the Claimant’s decision to not comply with a simple request of completing the forms has caused a ripple effect and ultimately left him unemployed.

[35] The evidence on the file in a letter dated November 13, 2013 (GD2-63) was sent to the Claimant requesting he complete a form in order for them to establish his eligibility for health coverage. From the Claimant’s oral evidence he refused to complete the form and he wasn’t going to give them 5 addresses.

[36] The Claimant presents the argument that getting his physical was not possible. He stated in the letter he received it stated that the physical had to be completed by his family doctor or a doctor who knew him personally. This became an issue because when he went to see his family doctor he was no longer there. He provided oral evidence the office wouldn’t tell him when the doctor would be back, he couldn’t see another doctor because they didn’t know him. He wrote to MPIC to tell him his situation, of no doctor or no health card so what was he to do. Nobody responded.

[37] The Tribunal finds the Claimant provided contradictory oral evidence as he later stated when he went to his family doctor and learned he was not available he was offered for another doctor to see him.

[38] The Tribunal finds the Claimants statements that he could only be seen by his doctor because it was someone who personally knew him and he couldn’t see him because he was away is contradicted with his statement that his family doctor’s clinic offered him to see another doctor and provide the physical he required, as his family health records would be available. The Tribunal finds the clinic did offer the Claimant a reasonable alternative in seeing another doctor.

[39] The Claimant also provided in his oral evidence that going to a Walk In clinic was not an option because he didn’t have a valid medical number, contradicts his original statements to the Commission that he did go to one Walk In clinic, which contradicts his statements he could only see a doctor who personally knew him.

[40] The Tribunal finds the Claimant made a personal choice not to seek the services of another doctor who would have access to his family records and be able to perform the physical he required. Or visit a walk in clinic where any doctor could perform a physical examination.

[41] The Claimant presents the argument that he didn’t want to quit working and he asked for a leave of absence but instead his employer told him they would have to replace him if he didn’t provide a copy of the letter from MPIC and they indicated quit on his record of employment.

[42] The Tribunal finds from the evidence on the file, the Claimant did speak to employer once he received his letter that his class 3 driver’s license had been declassified however the evidence on the file and the Claimant’s oral evidence only supports that the Claimant needed to leave and he didn’t know how long it would take to get his situation taken care of.

[43] The Tribunal finds from the evidence on the file and from the Claimant’s oral evidence that he never spoke to his employer prior to December 3, 2013 and at that time he made the decision not to return to work. The evidence supports the Claimant was made aware that he needed to obtain a physical by August 31, 2013 and he was not diligent in his actions to comply.

[44] The Tribunal finds from the evidence in the file, the employer was willing to assist the Claimant with his situation, requesting to see the letter from MPIC, however the Claimant refused to provide the letter or the help.  The Claimant’s initial statements to the Commission substantiate this was the initial conversation. The Claimant provided oral testimony that this was not the case. He stated his employer never offered him any assistance and that when the employer asked to see the letter, the Claimant didn’t refuse to show him but instead told him he could but not at that point because he didn’t have it. He stated he told his employer that he would keep him posted on what was going on within a reasonable amount of time, which he believed, would be about a week. However the employer told him if he wouldn’t show him the letter they would have to replace him.

[45] The Tribunal finds the original statements made by both the employer and Claimant to be a more accurate account of the events. The Tribunal finds the employer if given the opportunity may have been able to assist the Claimant with his issue, or may have been able to accommodate the Claimant’s employment with his class 5 license. The evidence supports the employer was never provided an opportunity to do either and if the Claimant was not able to explain or inform the employer when he would or could return the employer would have no choice but to replace the Claimant.

[46] The Tribunal finds the Claimant’s oral evidence supports he made a personal choice when he choose not to show letter to the employer or explain the situation in more detail to provide the employer with any alternatives.  In his testimony he states that the letter he received from MPIC was a personal confidential letter and before he went anywhere he wanted to make sure whatever the issue was he wanted to be able to explain it.

[47] The Claimant presents the argument the employer would not give him a leave of absence because the employer would be responsible to pay his child support. If he quit they would be off the hook.

[48] The Tribunal finds there is no evidence to support this argument.

[49] The Tribunal finds from the evidence on the file the reason the Claimant’s license was declassified is clearly stated in the letter and due to the fact he did not comply the request to provide a medical by August 31, 2013. The Tribunal finds the Claimant knew what the reason was. He has not provided any circumstances as to why he could not show the letter to his employer.

[50] The Claimant presents the argument that the employer lied when he said he had offered to help him or that he had experience with getting peoples drivers licenses back.

[51] The Tribunal finds from the evidence on the file, the employer’s statements are reasonable when they requested to see the letter from MPIC. There is no evidence to support whether they had experience in these matters or not; however the evidence does present the employer would have been open to assisting the Claimant had he not refused.

[52] The Tribunal finds the Claimant has not proven he had just cause for leaving his employment and that he had other reasonable alternatives available to him. The Tribunal finds the Claimant left his employment because of personal reasons. The Tribunal find the Claimant’s actions and choices he made to quit deliberately placed him a position of unemployment.

[53] The Tribunal finds the evidence does not support the Claimant made any attempts to seek solutions directly with Manitoba Health. The Claimant provided both documentary and oral evidence to the contrary, that he sought answers from other government departments and that he refused to provide Manitoba Health with the information they requested.

[54] The Tribunal finds it would have been a more reasonable alternative to seek the answers from Manitoba Health. The Claimant argues they would not tell him why his health number had been cancelled, however the Tribunal finds the facts are very clear in the letter dated November 13, 2013 from Manitoba Health to the Claimant notifying him that his Manitoba Health registration number was cancelled due to his moving to a new address without notifying their office. The letter requests the Claimant to complete and return the enclosed Manitoba Health Registration Application Form and a Residence Report Form so that they may determine his eligibility for health coverage. The letter provides a self-addressed stamped envelope, as well provides other alternatives in submitting the forms (GD2-63 to GD2-64).

[55] The Tribunal finds the Claimant argues quite adamantly he will not supply Manitoba Health with 5 addressees, however if the Claimant reads the form the question does not read to supply 5 addresses but rather “My places and dates of residence in or out of Manitoba from October 1, 2011 to present as follows: (GD 2-66).

[56] In Rena-Astronomo (A-141-97), which confirmed the principle established in Tanguay (A-1458-84) according to which the onus is on the claimant who voluntarily left an employment to prove that there was no other reasonable alternative for leaving the employment at that time, MacDonald J.A. of the Federal Court of Appeal (the Court) stated: “The test to be applied having regard to all the circumstances is whether, on the balance of probabilities, the claimant had no reasonable alternative to leaving his or her employment.”

[57] The Tribunal cites Landry A-1210-92 where the Court concluded that it is not sufficient for the claimant to prove he was reasonable in leaving his employment, but rather the claimant must prove that after considering all of the circumstances he had no reasonable alternative but to leave his employment when he did.

[58] The Tribunal finds the Claimant provided documentation relating to his Maintenance Enforcement however the issue before the Tribunal is voluntary leave and these documents to not present circumstances that are directly related to or provide just cause for leaving his employment.

[59] The Tribunal finds the Claimant’s personal reasons of principal may be good reasons to him; however they do not constitute just cause within the meaning of the Act.

[60] The Claimant presents the argument that he has paid into EI for years and he should be entitled to it.

[61] The Tribunal must apply the test of whether the claimant had a reasonable alternative to leaving his employment when he did. The Act imposes a duty on the claimant not to deliberately cause the risk of unemployment to occur. A claimant who has voluntarily left his employment and has not found other employment is only justified in acting in this way if, at the time he left, the circumstances existed which excused him from thus taking the risk of causing other to bear the burden of his unemployment. A claimant is responsible to exhaust all reasonable alternatives prior to placing themselves in a position of unemployment.

[62] The Claimant presents the argument that if he had of complied would it have mattered?

[63] The Tribunal finds in this case the Claimant did have reasonable alternatives to him that he did not exhaust and had exhausted them he may not have been in a position of unemployment. It is only after exhausting all reasonable alternatives available to him could it be determined if complying would not have rectified the situation and if he had just cause for voluntary leaving his employment as per the Act.

[64] The Tribunal finds the Claimant had several reasonable alternatives available to him, he could spoke to his employer to see if they would be able to accommodate him and he could remain employed without a class 3 license while he settled his issue with Manitoba Health and obtain his physical to reinstate his driver’s license and/or he could have completed the necessary forms required by Manitoba Health to reinstate his health insurance to obtain his physical to be submitted to MPIC.

[65] The Tribunal finds from the Claimants oral evidence that he knew in August he needed his physical to keep his license, he knew he needed a health card and he never spoke to his employer to see if he could remain employed and he refused to supply Manitoba Health with the information, thus the Claimant‘s actions placed himself in a position of unemployment.

[66] The Tribunal finds an indefinite disqualification should be imposed because the Claimant voluntarily left his employment without just cause.

Conclusion

[67] The appeal is dismissed.