WRONGFUL DISMISSAL - Dismissal without cause

Law360 Canada (May 26, 2023, 5:54 AM EDT) -- Appeal by Pham from summary judgment dismissing his claim for wrongful dismissal. Pham submitted that the Court should review and consider the issues of implied agreement to layoff and condonation, and the legal implications thereof, as the motion judge made legal errors in his analysis of that issue. Pham brought a claim for wrongful dismissal after receiving a notice of layoff followed by several extensions. Qualified Metal Fabricators Ltd. (Qualified) suffered significant financial losses because of the global pandemic. As a result, it laid off 31 employees of which 11 of them were welders, including Pham. Qualified brought a motion for summary judgment to dismiss the claim on the basis that Pham agreed to or condoned the layoffs or alternatively, failed to mitigate his damages by not seeking new employment. Pham initially took the position that the matter could be decided by summary judgment and brought a cross-motion for an order that he had been constructively dismissed. By the time of the hearing, however, Pham took the position that summary judgment was not appropriate and asked for judgment in his favour only in the alternative.  The motion judge granted Qualified’s motion for summary judgment dismissing the claim for wrongful dismissal and dismissed Pham’s cross-motion for judgment. Pham claimed, among others, that: the motion judge erred by proceeding on the mistaken understanding that both parties sought summary judgment and in failing to assess whether summary judgment was appropriate; in finding that there was an implied agreement to lay off Pham because he was aware that many of his co-employees were laid off; and, in deciding that Pham condoned the layoffs by signing the letter provided to him when he was laid off, seeking legal advice and/or, not protesting his own layoff....
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