Court File No. CV-18-541074 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ‘MUHAMMAD UMAR NASEEM Plainitt sand 2041188 ONTARIO INC. c.0.b. PETRO CANADA and SHOYAIB KHAN Defendants STATEMENT OF DEFENCE 1. The Defeuants deny paragraphs 1, 5, and 7 48 of dhe Statement of Clam, 2. The Defendants admit paragraphs 2, 3, 4, and 6 of the Statement of Claim. 3. The comporate Defendant, 2041188 Ontario Inc. (*2041188"), owns and operates a number of gas stations inthe Greater Toronto Area (“GTA”) including but not limited to ‘a station under the Petro Canada banner located at 117 Jarvis Steet the City of Toronto (Jarvis Gas Station”), 4. The personal Defendant, Shoyaib Khan ("Khan"), is a principal and owner of 2041188 and an immigrant from Pakistan. Initial Employment ‘5. The Plaintiff emigrated from Pakistan from the same region as Khao, The Plaintiff was initially employed pursuant to a work permit issued by Canada Immigration Commissionm. 10, IL (°CIC”) as a Counter and Cash Attendant by 2041188 at gas station at Keele and Bloor in the City of Toronto as of August 2009, for a period of one yeat. During the term of the Plaintiff's employment, he was promoted to the postion of Retail Sales Manager and was subsequently assigned tothe Jarvis Gas Station. No written agreement governed the relationship between the parties. The Plaintif's work Permit expired in August 2010 and, therefore, his employment with 2041188 ended at that ime. During the term of his employment, the Plaintiff was not required nor was he requested to ‘work overtime in any position. Furthermore, 2041188 was not aware nor did it have any requirement ofthe Plaintiff to work hours in excess of the 40-hour workweek. Its only om the rare occasion that an employee, either managerial or non-manages is required to work in excess of 40-hours per week. In any case, os a supervisor and manager, the Plaintiff was not entitled to any overtime pursuant to the Employment Standards Act, 2000 (“ESA, ‘Subsequent Employment from 2011-2015 Following the conclusion ofthe Plaintiff's employment and in response to his request to establish himself in Canada, the Defendants agreed to support his application to CIC as a ‘Temporary Foreign Worker in the position of Retail Sales Manager. A work permit wes then issued by CIC which enabled the Plaintiff to be employed by 2041188 as of December 5, 2011. ‘As a Retail Sales Manager, the Plaintiff was responsible for supervising and maintaining the operation of the Jarvis Gas Station including assuring that staff were in place to perform their duties and performing such work as assigned by management to maintain its efficient and independent functioning when he was not present at the location, The2 13, 14, 45, expectation was thatthe Plaintiff, like his peers at other gas stations, would easily carry ‘ut his duties within the standard 40-hour workweek, Under the terms of his new employment agreement, 2041188 did agree to pay the Plaintiff an overtime rate, if required. Such entitlement was not automatic and could not be triggered at his own initiative, He did not have authority to work such additional hours without advising his employer, much less without them knowing 2 to what edditional value he was providing. At no time did 2041188 encourage the Plaintiff to work beyond 40-hours per week nor was it aware of this practice to do so, It had every reason to believe that his hours of work were equivalent to those of his peers who did not work ‘more than 40-hours per week. ‘The letters of employment that were dated November 6, 2012 and March 8, 2013 were consistent with the terms of his employment agreement. While the letter of November 6, 2012 referred to an overtime rate of $34.50 per hour with a 40-hour work week, there was no reference to the overtime rate in the March 2013 letter. The reason ws that in his ‘managerial and supervisory position, there was no regular calling for him to have worked those hours, ‘The exclusion of the overtime hours from the March 8, 2013 letler was not & material ‘omission that would have required 2041188 to notify Service Canada. In any case, the ‘omission of overtime hours and whether 2041188 alerted Service Canada is immaterial to ‘What the terms of the actual employment agreement were relating 0 payment of overtime, In addition and in the alternative, while the agreement dated November 6, 2012 contained a provision for overt there was no such term in the March 8, 2013 letter ‘Therefore, even ifthe Plaintiff is entitled to overtime (which is specifically denied), it ‘would be limited up to the date of the March 8, 2013 agreement. In any case, 2041188 maintains:(@) ‘The duties that the Plaintiff performed did not require or entail overtime. All of the staff who held comparable positions worked an average of 40 ~ 44 hours per week, (©) The Plaintiff did not engage in compensable hours of work which 2041188 knew ‘or ought to have known was otherwise being performed, (© Because 2041188 did not have knowledge of such work, it has not “suffered” or “permitted” such work to be performed thereby triggering any wage or overtime obligation under the ESA, (@ The job as Retail Sales Manager required the incumbent 10 establish an operational system that would enable the Jarvis Gas Station 10 run efficiently ‘outside his working hours. (©) Ato time did the Plaintiff ask to work additional hours aver the standard hours during his tenure. 2041188 was never informed nor did they characterize the attendance records as being records of overtime. (The Plaintiff sttonded and left work on his own volition and not at the request or knowledge of 2041188 which did not require or expect his services for more than the standard workweek. The suguestion thatthe Plantff has accrued overtime in ‘the sum of $400,000 or that he generated an annual income of $170,000 in salary 6 a retail sales manager strains the bounds of credibility and tenability. At no ‘ime was 2041188 aware, nor dd it authorize, the extraordinary hours claimed by ‘the Plaintiff in furtherance ofthe management ofthe stor. (@) The Plaintiff's records, which he characterizes as attendance records, simply indicate the times that he recorded having arrived at or left work which were not in any case, verifiable. They did not indicate the nature or the duration of the actual work that he was performing in the intervening hours. They do not support the suggestion that 2041188 was requiring him to work those hours or that it was ware that he worked those additional hours. Such hours of work were neither expected nor known, (t) The Plain made it known that, among other things, he shared a cramped flat With two other people and often preferred to remove himself from his dwelling and stay of sleepin the gas station. As wel, during the working day, the Plaintiff often absented himself on personal affairs and would direct staf that in the event ‘that Khan called for him, they should misinform Khan about the time of his ‘departure from the siteim. 16. 0. 18. 19. Departure In the fall of 2014, the Plaintiff informed Khan that he wished to get marred and was, secking a leave of two months. 2041188 acceded to this request and the Plaintiff let on October 19, 2014. Instead of a two-month absence, the Plaintiff was absent for a period of over five months. ‘When the Plaintiff finally returned to Canada, he sought to return to his job. He also ‘demanded a pay increase pointing to his changed personal circumstances. Khan informed him that 2041188 would be amenable to his returning and to receiving a pay increase if he assumed the responsibility for an additional site. The Plaintiff responded that when he purchased a car he would be in a position to assume more sites but in the interim, he wished to return to his lst job. Khan agreed and the Plaintiff returned on April 8, 2015 to his last postion. Following the Plaintiff's return, the Defendants received a report from staff about serious inegularities on the part ofthe Plaintiff that took place prior to his departure on leave and ‘came into sharp while he was on leave. During the Plaintif’s absence, members of the public were attending at the Jarvis Gas Station looking for him so that they could pay for parking on its premises. They informed the staff that they had individual arrangements with the Plaintiff to pay him cash for parking on the premises which were in great ‘demand. Staff reported these requests to the Defendants and informed them that wen they questioned the legitimacy of this practice, the Plaintiff responded that he was simply collecting these funds to cover any purported cash shortfalls. The Plaintiff never informed the Defendants of this practice nor was he authorized 1o maintain it. In any ‘ase, no cash was ever reported or received by the Defendants from the Plaintiff, nor did hhe account for such income. 2041188 seoks an accounting of such income from the Plainttt ‘When Khan learned of these allegations from staff, he questioned why it was not ‘mentioned earlier. The response that he received was that staff did not think it wasa1, 24. important as they did not believe thatthe Plaintiff was returning, They felt compelled to ‘come forward upon the Plaintiff's return to his position. On or about April 15, 2015, Khan confronted the Plaintiff with these allegations. The Plaintiff claimed that staff were lying. Khan advised him that the Defendants would continue to investigate these allegations. The Plaintiff was obviously upset by the news of the investigation, Several days later, on April 18, 2015, the Plaintiff entered Khan’s office and abruptly accused him of paying him less than other managers because of his immigration status, ‘This was untrue. The Plaintiff then stated that he could not work for 2041188 until the alleged wage differential between him and other managers was correc. He also ‘demanded to access the pay records of other employees which the Defendants were not prepared to share with him, Subsequently, the Plaintiff slammed his keys on Khan's desk and advised that he was leaving. It was apparent that the Plaintiff was concerned about the investigation into his collection of cash from members of the public and contrived the confrontation in an effort to avoid being dismissed for cause Despite the Plaintif’s resignation, 2041188 gratuitously paid him the sum of $6,000 ‘without any obligation todo so and under a misepprehension as to their legal obligations. In any case, because the Plaintiff voluntarily resigned, he is not entitled to any further amounts on account of termination pay or severance pay. ‘At the time of the Plaintiff's resignation, his annual income would have been approximately $43,000 per year. This was slightly above average for retail sales ‘managers in the GTA. In the alternative, even if the Plaintiff was terminated (which is specifically denied), it \as for just cause based on his behaviour in collecting cash from members ofthe public without colour of right or authority and not accounting for such monies to his employer,Wv. 2. In the alternative, even if te plaintiff was terminated without cause (which is specifically denied) in light of his youth and portability of skills, he should have litle difficulty finding alternate employment. His notice period, if he is found to be terminated, should be in the range of three months. In any event, the Plaintiff is not entitled to any additional ‘wages or overtime. The Plaintiff has been paid out all amounts as prescribed by statute ang his employment agreement. The Plaintiff was not terminated nor was he subjected to aay form of diserimination contrary tothe Human Rights Code (the “Code”, Response to Allegations ‘With specific respect to paragraphs 15 ~21 of the Statement of Claim: (®) The Plaintiff did not work an excessive amount of compensable time in excess of the standard 40-hour workweek nor did he work an average of 105 houts per week. (©) The Plaintiff did not have the right to simply accumulate hundreds of hours without any value and without the approval or knovledge of 2041188 and then ‘make a demand for payment following his resignation, (©) ‘The eaails and text messages tha the Plaintiff sent do not disclose the degree or nature of work that he performed. At no time did he receive the authority or approval to work such hours nor was such work compensable. (@ As supervisor and manager, 2041188 was not required to pay the Plaintiff any overtime pursuant to the ESA. Furthermore, it had no requirement to maintain records of his hours in light of his managerial and supervisory status. (©) At no time was 2041188 aware of nor did it encourage the Plaintiff to work excessive hours (© 2041188 denies that the Plaintiff is entitled to 15 times his regular hourly rate for any overtime worked after March 8, 2013, (g) In addition and in the alternative, the Plaintiff is barred by section 4 of the Limitations Act, 2002, $.0. 2002, c. 24, Sched. B from pursuing his claim for29, fovertime hours beyond the two-year period that precedes the commencement of this claim, (%) The Plaintiff speaks English; has pursued Masters studies in Canada in the English language: and has worked for many years in an English speaking ‘environment. He entered info and relied on terms of an employment agreement that speaks to overtime entitlement. From the bona fide perspective of 2041188, hhe was not entitled to overtime for the reasons outlined above, ‘There was no ‘concealment or misrepresentation of his entitlement nor was there any legitimate reason that the Plaintiff could not have discovered or ascertained his legal and statutory entitlement prior to the commencement of his employment and during his employment. (__Atno time during the Plaintf?'s employment did he complain about non-payment ‘of overtime, The reasons he cited for his departure were unrelated to overtime. With specific respect to paragraphs 22 ~ 25 of the Statement of Claim, 2041188 denies ‘that the Plaintiff was not compensated for hours that he worked or that he did not receive his vacation pay as required by the ESA. ‘with specitic respect to paragraphs 26-28 of the Statement of Claim: (@) ‘The Plaintiff wrongfully asserted that somebow he was paid differentially from the other staff because of his status as an employce on a work permit, Khan correctly stated that he was not entitled to any pay differential. Khan did not justly any pay differential on the basis of the support of 2041188 for his pplication for permanent residency. (®) 2041188 did not terminate the Plaintiff's employment nor was its behaviour in ‘any way an unlawful reprisal contrary 1 Section 74 ofthe ESA. (©) In addition and in the alternative, the Plaintiff cannot assert a claim for reprisal under the ESA as no such remedy is available under common law, The ESA provides for an exhaustive redress procedure and the Plaintiff must avail himself of this statutory procedure in light of the comprehensive remedy set out in the statute, With specific respect to paragraph 29 of the Statement of Claim, 2041188 denies thatthe Plaintiff is owed any monies or that his immigration status or nationality had any bearing ‘on his level of pay or that it violated the Code.31 22 33 With specific respect to paragraphs 30 - 34 of the Statement of Claim: (@ Muhammad trfan Bhai (“Bhai”) is from the same province as the Plaintiff and Khan. He has never been an employee of 2041188 but is a consultant who provides inventory count court service. (©) Bhai was not authorized by any of the Defendants to contact the Plaintiff's father in Pakistan or to convey any kind of threat or intimidation to the Plaintiff as a result of his claim (©) Apparently, Bhai acted on his own initiative asa peacemaker between the partes because of the circumstances of the Plainti’s departure and their being in the same community. (@ None of the Defendants, including Khan, are in any way responsible for Bhai's ‘behaviour either vicariously or otherwise. (©) Inany case, Bhai has advised that he did not convey any threat nor id he offer '$70,000 to the Plaintiff nor did he have such authority to extend such an offer. With specific espect to paragraphs 35 - 37, the Plaintiff was wot truninatel bul resigned, In addition and in the alternative, even if he was terminated (which is specifically denied), in light of his youth, experience and portable skills, the Plaintiff should have litle difficulty in finding alternate employment. The relevant date for assessment of the Plaintiff's length of service by this Honourable Court should be December 5, 2011. In addition and inthe alternative, the quantum of any damages shovld be based om his base ‘annual salary and not on the basis of his exaggerated claim for overtime, ‘The damages sought by the Plaintiff are excessive and unwarranted. With specific respect to paragraphs 38 -39 ofthe Statement of Claim: (@) The Defendants deny that there is any obligation to pay the Plaintiff any ‘outstanding wages, overtime, or vacation pay, The Plaintiff has been paid all ‘amounts pursuant to statute and his employment agreement. () ‘The Defendants are not joinly and severally liable for the alleged outstanding ‘wages, overtime, and vacation pay as aserted by the Plaintiff34, 35. 36 3. 38, -10- (©) Pursuant tothe ESA and the Ontario Business Corporations Act (*OBCA"), even, if 2041188 is found liable for any outstanding wages, Khan, asthe director of 2041188 would only be jointly and severally liable for an amount not exceeding six months of wages under both statutes and vacation pay for not more than 12 ‘months under the FSA, (Furthermore, this Honourable Court does not have jurisdiction to onder any amounts on’ account of unpaid wages under the ESA. Such authority lies exclusively with the Employment Standards Officer in the event that the Defendant isnot insolvent. (©) Under the OBCA, proceedings against 2041188 must be exhausted before any ireetor liability may be imposed against Khan, ‘With specific respect to paragraph 40 of the Statement of Claim, the Defendants deny that their conduct, in any way, resulted in injury tothe Plant's dignity, sel-respect and self-esteem, or that he is entitled to any damages under the Code. With specific respect to 41 ~ 44 of the Statement of Claim, the Defendants deny that thore is any factual legal basis for the award of punitive material times, the Defendants acted fairly and in good faith with the Plaintiff. The Plaintiff was not taken advantage of in any way in the course of his employment nor was he terminated. The Plaintiff's claim for overtime is made in bad faith and is without any foundation in factor law. 1d exemplary damages. At all of Claim, the Defendants deny that they have engaged in behaviour that amounts to intentional infliction of mental ‘With specific respect to paragraph 45 of the Siatem listess and suffering or that they are jointly or severally liable for such damages. With specific respect to paragraphs 46 ~ 47 of the Statement of Claim, the Defendants deny that the Plaintiff has reasonably mitigated his damages or incurted any out-of- pocket expenses and puts the Plaintiff tothe strict proof thereof, With specific respect to paragraph 48 of the Statement of Claim, the Defendants seeks an ‘order from this Honourable Coutt to dismiss this action with costs to be awarded on a substantial indemnity basis,one January 18, 2016 LEVITT & GROSMAN LLP TO: 130 Adelaide St. West Suite 801, PO Box 89 ‘Toronto, Ontario’ MSH 3PS Israel Balter LSUC #239650 ‘Telephone: 416,597.6478 Facsimile: 416.597.3396 Lawyers forthe Defendants WHITTEN & LUBLIN PC Employment Lawyers 141 Adelaide St West, Suite 600 Toronto, ON MSH 3L5 David A. Whitten LSUC# 47306 Ozlem Yucel LSUCA 665430 Telephone: 416.640.2667 Facsimile: 416,644,519 Lawyers for the Plaintiffstuzpuayoq 24) 205 sake 96ee Los orr Sd HSW NO “or0:0. 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