Court File No.

:
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MUHAMMAD UMAR NASEEM

Plaintiff

-and2041188 ONTARIO INC. c.o.b. PETRO CANADA and

SHOYAIB KHAN

Defendants

STATEMENT OF CLAIM
TO THE DEFENDANTS
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the
Plaintiff. The Claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer
acting for you must prepare a Statement of Defence in Form 18A prescribed by the
Rules of Civil Procedure, serve it on the Plaintiff's lawyer or, where the Plaintiff does
not have a lawyer, serve it on the Plaintiff, and file it, with proof of service, in this
court office, WITHIN TWENTY DAYS after this Statement of Claim is served on you,
if you are served in Ontario.
If you are served in another province or territory of Canada or in the United
States of America, the period for serving and filing your Statement of Defence is forty
days. If you are served outside Canada and the United States of America, the period is
sixty days.
Instead of serving and filing a Statement of Defence, you may serve and file
a Notice of Intent to Defend in Form 18B prescribed by the Rules of Civil Procedure.
This will entitle you to ten more days within which to serve and file your Statement
of Defence.
IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE
GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO

YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY
LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A
LOCAL LEGAL AID OFFICE.
IF YOU PAY THE PLAINTIFFS CLAIM and $1000.00 for costs, within the
time for serving and filing your Statement of Defence, you may move to have this
proceeding dismissed by the court. If you believe the amount claimed for costs is
excessive, you may pay the Plaintiffs claim and $500.00 for costs and have the costs
assessed by the courts.
TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if
it has not been set down for trial or terminated by any means within five years after
the action was commenced unless otherwise ordered by the court.
Date:______________

Issued by:
Address of:

TO:

2041188 Ontario Inc. cob. Petro Canada

2 East Mall Crescent
Etobicoke, Ontario
M9B 3Y6

AND TO: Shoyaib Khan

3400 Escada Drive
Mississauga, Ontario
L5M 0K1

Local Registrar
393 University Avenue
10th Floor
Toronto, Ontario
M5G 1E6

CLAIM

1.

THE PLAINTIFF CLAIMS THE FOLLOWING RELIEF:

a. Damages in the sum of $250,965.93 for wrongful dismissal, representing
18 months pay in lieu of notice of termination;
b. Damages in the sum of $395,208.45 in unpaid wages, calculated as
follows:
i.
ii.
iii.

$19,390.15 regular wages;

$354,887.96 overtime pay; and
$20,930.33 vacation pay.

c. General damages in the sum of $100,000.00 for violations of the Human

Rights Code, R.S.O. 1990, c. H.19 (the Code);
d. Punitive and exemplary damages in the amount of $250,000.00;
e. Aggravated damages in the amount of $250,000.00 for intentional
infliction of mental suffering;
f. Special damages in a sum to be proven at trial, representing the Plaintiffs
out-of-pocket expenses incurred in connection with the termination of
her employment;
g. Pre-judgment and post-judgment interest on all amounts found due and
owing to the Plaintiff pursuant to the Courts of Justice Act, R.S.O. 1990, c.
C-43, as amended;
h. His costs of this action on a substantial indemnity basis together with
Harmonized Sales Tax thereon in accordance with the Excise Tax Act,
R.S.C. 1985, c. E-15 as amended; and
i. Such further and other relief as counsel may advise and this Honourable
Court may deem just.

I.

The Parties

2.

The Plaintiff, Muhammad Umar Naseem (Naseem), is 30 years-old and a new

immigrant to Canada who recently obtained permanent residency. Naseem was
born and raised in Pakistan.

3.

The Defendant, 2041188 Ontario Inc. c.o.b. Petro Canada (Petro Canada), is a
corporation that conducts business in the Province of Ontario. It recently
employed Naseem as part of the Temporary Foreign Worker Program.

4.

The individual Defendant, Shoyaib Khan (Khan), is the sole director and
President of Petro Canada.
II.

Background

5.

Naseem commenced employment with Petro Canada in or around August 2009

pursuant to a one year work permit. He worked as a cashier for one year. In
January 2010, he was promoted to the position of Trainee Retail Sales Manager.
From August 2009 through August 2010, Naseem worked an average of 98
hours per week; he did not receive any overtime pay.

6.

On December 5, 2011, Naseem returned to Petro Canada as a Retail Sales

Manager pursuant to a written offer of employment, dated October 24, 2011
(Employment Contract), as approved by Service Canada pursuant to a Labour
Market Opinion (LMO) detailing the terms of his employment, including
entitlement to overtime pay.

7.

On November 19, 2012, Naseem was offered and accepted the role of Retail
Sales/Gas Station Manager in accordance with the LMO. He held this position
until the termination of his employment on April 18, 2015.

8.

Naseems Employment Contract sets out the terms and conditions of his
employment as follows:
Wage:
Benefits:
Hours of work:
Overtime hours:

$23.00 per Hour CAD;

4.00% vacation pay;
8.00 hours per day; 40.00 hours per week;
Overtime rate of $34.50/hr will be paid if you
work more than 44.00 hours per week.

9.

The Employment Contract is silent with regards to the termination of

employment.

10.

Naseem was a dutiful and dedicated employee who performed admirably

throughout his employment.

11.

On November 15, 2012, Service Canada issued Petro Canada another LMO
based on the terms and conditions set out in the Employment Contract, as
outlined above. The contract was attached as an appendix to the LMO.

12.

Pursuant to the LMOs, Petro Canada was required to employ Naseem strictly on
the terms and conditions of the Employment Contract. If any changes were
made to those terms and conditions, Petro Canada was legally required to
immediately notify Service Canada of same.

13.

The terms and conditions of Naseems employment remained the same

throughout his tenure as confirmed by the fact that Service Canada was not
notified of any changes.

14.

After the LMO was in place, Petro Canada gave Naseem two letters, dated
January 11, 2013 and March 8, 2013 (Experience Letters) to give to
Citizenship and Immigration Canada. These letters confirmed certain aspects
of Naseems position, including his hours of work which were, allegedly, only
eight hours daily. They did not alter the terms and conditions of his
employment, as outlined in the Employment Contract. At no time were the
Experience Letters provided to Service Canada. Therefore, the terms of
Naseems employment pursuant to the LMO remained unchanged.

Unpaid Overtime
15.

Naseem consistently worked an excessive amount of time over and above 44

hours per week. Throughout his employment, it is estimated that he worked an
average of 105 hours per week, or 61 overtime hours. Throughout the course of
his tenure, Naseem worked a total of 11,570.45 overtime hours.

16.

At no time did Petro Canada obtain an excess hours or averaging agreement, as

required by Section 22(1) of Ontarios Employment Standards Act, 2000, S.O.
2000, c. 41 (the ESA).

17.

Naseems overtime hours can be verified by the e-mails and text messages that
he sent Khan, documenting his in and out activities. They can also be verified
by his personal attendance at the workplace and weekly timesheets.
Furthermore, Naseems hours are within the knowledge and control of Petro
Canada, which had a legal obligation to maintain an accurate record of same,
pursuant to Section 15(1) of the ESA.

18.

At no point in time did Petro Canada discipline, or tell, Naseem not to work the
hours that he did. On the contrary, the Defendants were aware of, and
encouraged Naseem to work excessive hours as particularized above.

19.

Despite the foregoing, Petro Canada only paid Naseem for work at his regular
rate and, following his first year of employment, for no more than 40 to 44
hours of work per week.

20.

Pursuant to the ESA, Naseem is entitled to 1 times his regular hourly rate for
each overtime hour worked. This amounts to $354,887.96 in unpaid overtime
pay over the course of his employment. Attached hereto and marked as
Appendix A is a spreadsheet that summarizes the amount of overtime pay
that is owing to Naseem.

21.

Pursuant to the Ontario Court of Appeals decision in Evangelista v. Number 7

Sales Limited, [2008] O.N.C.A. 599, there is no limitation period limiting
Naseems claim for overtime pay throughout his employment. The Defendants
misled him about his entitlement and, as a result, Naseem did not discover his
entitlement in this regard until May 2014 when he obtained permanent
residence status in Canada.

Unpaid Wages
22.

Separate and apart from not being paid for his overtime hours, Naseem was not
even compensated for all of the hours that he worked at his regular rate.

23.

Naseem is owed approximately $19,390.15 in unpaid wages for regular hours of

work performed between 2011 and 2014.

24.

Naseem is also entitled to 4% of his unpaid wages and overtime pay as vacation
pay in accordance with Section 35.2 of the ESA.

25.

The spreadsheet at Appendix A summarizes the amount of unpaid wages and

vacation pay that remains owing to Naseem.

Termination of Naseems Employment

26.

When Naseem discovered his entitlement to overtime pay, he raised it with

Khan. In response, Khan intentionally misled Naseem into believing that he
was not entitled to be paid for his hours of work. He did so by suggesting, on a
number of occasions, that Petro Canadas actions were justified on the basis of
its support for his application for permanent residency.

27.

When Naseem insisted upon being paid for the hours that he worked, Petro
Canada denied his entitlements, refused to compensate him, and terminated
his employment. This amounts to unlawful reprisal contrary to Section 74 of
the ESA.

28.

There was no cause for the termination of Naseems employment. Petro

Canada failed to provide any notice of termination, or pay in lieu thereof other
than a payment of $6,000.00, less deductions; the basis for the calculation is
solely within the knowledge and control of the Defendants.

Violations of the Code

29.

The Defendants refusal to pay Naseem, as a result of his immigration status

and nationality, constitutes a breach of his right to equal treatment in
employment, pursuant to section 5 of the Code.

Threats, Intimidation and Extortion

30.

On or around November 3, 2015, an employee of Petro Canada, Muhammad

Irfan Bhai (Bhai), contacted Naseems father in Pakistan to advise him that
Naseem was wrong to pursue Petro Canada for his unpaid wages and, as a
result, Petro Canada would do him harm. Bhai could only have obtained
Naseems fathers contact information from Khan.

31.

On November 7, 8 and 9, 2015, Bhai arranged meetings with Naseem wherein

he suggested that Naseem terminate his counsel so that Bhai could advocate on
his behalf with Khan. When Naseem refused, Bhai aggressively accused him of
cheating and ripping off Khan. Bhai threatened Naseem that Petro Canada
would cause him harm. When Naseem responded that this was not
7

permitted under Canadian law, Bhai cryptically inquired what would happen if
Naseem were to be found dead in his home? (Threats)
32.

Bhai subsequently offered Naseem $70,000.00 to not pursue his claim against
the Defendants.

33.

The Threats caused both Naseem and his young wife anxiety and distress for
which he has now sought medical attention. Naseem has also contacted the
Toronto Police Service.

34.

Khan is vicariously liable for Bhais behavior.

III.

Damages

Reasonable Notice
35.

It was an implied term of the Employment Contract that where Petro Canada
purported to terminate Naseems employment without cause, it would provide
him with reasonable notice of the termination of his employment, or pay in lieu
of notice, as prescribed by the common law.

36.

Naseem is entitled to a notice period of 18 months, having regard to the

following factors:
a. His approximately 5 years tenure;
b. His 30 years of age at the date of his dismissal;
c. His managerial role;
d. His significant compensation, which as a result of his lack of professional
experience, will be difficult to replace;
e. The lack of comparable, alternative employment, having particular regard
to the earnings that he ought to receive for his hours of work at Petro
Canada, $167,310.63 in his last full year of employment; and
f. Such other factors as counsel may advise and particularize prior to the
commencement of the trial of the within action.

37.

Naseem is entitled to damages for his economic losses as a consequence of

Petro Canadas failure to provide reasonable notice of termination, having
regard to the compensation that he should have received had his employment
continued over the notice period. The spreadsheet at Appendix A confirms
that Naseem should have received $167,310.63 in the last year of his
employment. Therefore, his severance should be based on this level of
compensation, which amounts to $250,965.93 over an 18 month notice period.

Unpaid Wages
38.

Naseem is entitled to his outstanding wages, overtime, and vacation pay. The
spreadsheet at Appendix A confirms that he is owed the sum of $395,208.45.

39.

Petro Canadas directors and officers, including Khan, are personally liable for
Naseems unpaid wages, overtime pay, and vacation pay. To this end, Naseem
relies on Section 81(1) of the ESA and Section 131(1) of Ontarios Business
Corporations Act, R.S.O. 1990, c. B. 16.

Damages for Violations of the Code

40.

The Defendants conduct, as set out above, resulted in injury to Naseems

dignity, self-respect and self-esteem, as well as pain and suffering. Naseem
claims damages in the sum of $100,000.00 against the Defendants jointly and
severally.

Punitive and Exemplary Damages

41.

The Defendants conduct was also callous, high-handed, malicious and

reprehensible, and constitutes an independently actionable wrong, so as to
warrant censure of this Honourable Court.

42.

In particular, employers should be discouraged from taking unfair advantage of

new immigrants, knowing that will be reluctant to insist upon their rights due
to ignorance of Canadian law or fear of reprisal. Employers should also be
discouraged from subsequently terminating employment when employees
insist upon their right to be compensated.

43.

The Threats and Bhais attempted extortion of Naseem are particularly

egregious and warrant a significant award of punitive and exemplary damages.

44.

Naseem claims punitive and exemplary damages in the sum of $250,000.00

against the Defendants jointly and severally.

Intentional Infliction of Mental Suffering

45.

The Defendants conduct, as particularized above, was calculated to cause

Naseem mental distress and suffering. It amounts to an independently
actionable wrong, which is compensable by way of an award of damages on
account of Naseems mental distress. Naseem claims the sum of $250,000.00
against the Defendants jointly and severally.

Special Damages
46.

Naseem has incurred out-of-pocket expenses in connection with the

termination of his employment, the sum of which continues to accrue and will
be proven at the trial of the within action.

Mitigation
47.

Naseem has used best efforts to mitigate his losses, but has been unable to do
so.

Costs
48.

For the above reasons, Naseem pleads that this action be granted with costs
payable to him, by the Defendants, on a substantial indemnity basis.

The plaintiff proposes that this action be tried in the City of Toronto.

Date of Issue:

Whitten & Lublin PC

Employment Lawyers
141 Adelaide Street West
Suite 600
Toronto, ON M5H 3L5
David A. Whitten
LSUC# 47306F
10

Ozlem Yucel
LSUC# 66543W
Tel: (416) 640-2667
Fax: (416) 644-5198
Lawyers for the Plaintiff

11

MUHAMMAD UMAR NASEEM

Plaintiff

and

2041188 ONTARIO INC. et al.

Defendants
Court File No.:
ONTARIO
SUPERIOR COURT OF
JUSTICE
Proceeding commenced at
TORONTO

STATEMENT OF CLAIM
Whitten & Lublin
Employment Lawyers
141 Adelaide Street West
Suite 600
Toronto, ON M5H 3L5
David A. Whitten
LSUC# 47306F
Ozlem Yucel
LSUC# 66543W
Tel: (416) 640-2667
Fax: (416) 644-5198
Lawyers for the Plaintiff