Worker dismissed after returning from 18‑month disability leave
The Ontario Superior Court of Justice has partly allowed a former University Health Network (UHN) perfusionist to expand his wrongful dismissal and human rights lawsuit, while blocking several late allegations as out of time.
In Saleem v. University Health Network, 2026 ONSC 1208, associate justice Rappos granted in part a motion by Nusrat Saleem to amend his statement of claim and to move the action from the simplified to the ordinary procedure.
Saleem alleges he was constructively dismissed about one month after returning from an 18‑month disability leave. The original claim states that Saleem returned to work on or around July 7, 2020, and that on Aug. 7, 2020, “UHN suspended Mr. Saleem’s employment without pay and thereafter failed to return Mr. Saleem to his employment.”
He pleads that “it was not a term of his employment that he could be suspended by UHN without pay,” and alleges that “in suspending Mr. Saleem’s employment without pay UHN constructively terminated his employment.” Saleem also claims his “disability or perceived disability, his ethnic background and religion played a role in his treatment by UHN,” contrary to the Human Rights Code.
The original 16‑paragraph claim sought damages for wrongful dismissal and for breaches of the Human Rights Code, including compensation for “injury to dignity, feelings and self‑respect” and 12 months’ notice of termination.
Previously, the Ontario Superior Court of Justice ruled that two former senior executives of Nickel 28 Capital Corp. can rely on a contested “without prejudice” communication in their wrongful dismissal lawsuit, while striking out all claims against two company directors in their personal capacities.
UHN’s position on dismissal
UHN denies that Saleem was constructively dismissed or suspended without pay. In its statement of defence, the employer says Saleem attempted to return to work but “was unsuccessful due to medical reasons,” that his medical leave resumed, and that his leave became unpaid because his long‑term disability benefits were terminated by the insurer for non‑compliance with a recommended rehabilitation programme.
The detailed pleading includes allegations about:
- a new heart‑lung machine
- training
- performance concerns
- meetings on Aug. 7 and 10, 2020
- the interaction between UHN, the plaintiff and the long‑term disability provider.
Proposed amendments
More than two years after UHN served its defence, Saleem sought to substantially amend his claim. The proposed fresh as amended statement of claim runs to 53 paragraphs, compared with the original 16.
The amendments sought to:
- increase the quantum of wrongful dismissal damages
- add $250,000 in moral and/or aggravated damages and $250,000 in punitive damages
- introduce 48 new paragraphs detailing his leave of absence, return to work, relationship with UHN and long‑term disability benefits, as well as remedies such as reinstatement or, alternatively, human rights damages.
Saleem argued that Rule 26.01 of the Rules of Civil Procedure allows amendments “at any time” and that the changes added particulars rather than new causes of action. He also submitted that UHN had not shown prejudice that could not be compensated by costs or an adjournment.
UHN agreed to the transfer to the ordinary procedure and to imposition of a litigation timetable, and did not oppose some amendments. However, it maintained that most of the proposed changes introduced new causes of action and new facts outside the two‑year limitation period, presented “a fundamentally different theory of liability,” and would cause non‑compensable prejudice.
Court’s analysis of amendments
Rappos confirmed that under Rule 26.01, “the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” The rule is “framed in mandatory terms,” he noted, but the court may refuse an amendment that is scandalous, frivolous or vexatious, fails to disclose a reasonable cause of action, or causes non‑compensable prejudice, including where a limitation period has expired.
He adopted a “factually oriented” approach to cause of action, describing it as “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.” An amendment is not a new cause of action, he said, if “the original pleading contains all the facts necessary to support the amendments” and the amendments merely add or clarify relief or provide particulars.
On the disputed heads of damages, Associate Justice Rappos held that aggravated and punitive damages are remedies, not separate causes of action. Citing authority that “a claim to aggravated or punitive damages is not a cause of action in and of itself,” he concluded that “the addition of these claims by Mr. Saleem is permissible, as they are not new causes of action.”
Particulars allowed, new theory rejected
Reading the original claim “generously,” Rappos found that Saleem had already pleaded constructive dismissal based on being placed on unpaid leave, UHN’s alleged failure to return him to work, and its treatment of him after the alleged suspension. Although the initial pleading did not describe events between July 7 and Aug. 7, 2020, or subsequent dealings, he held that paragraphs 10 to 38 of the proposed amendments “add facts to particularize the causes of action contained in the statement of claim and are responses to the facts as alleged by UHN.”
“It would be inequitable to prevent Mr. Saleem from fleshing out his factual allegations to his claim and respond to the Defendant’s version of the events through the amendments contained in paragraphs 10 through 38,” he wrote.
However, a proposed allegation that Saleem was “forced to submit a resignation letter to UHN for the purpose of getting access to his pension” in February 2022 was refused. Associate Justice Rappos found it “untethered to the statement of claim” and “a fundamentally different claim in constructive dismissal,” raised more than two years after the event and therefore statute‑barred.
Further proposed paragraphs on mitigation efforts and UHN’s alleged failure to assist him in finding work were also rejected as going “far beyond what is pled in the statement of claim” and relating to events outside the limitation period.
Other amendments, including a paragraph about an August 2022 neurology assessment responding to UHN’s defence, and further particulars of the alleged constructive dismissal and damages, were permitted. An objection to the withdrawal of one original paragraph about length of service was dismissed.
“For the reasons set out above, the Plaintiff’s motion to amend its statement of claim is granted in part,” Associate Justice Rappos concluded, directing the parties to settle the formal order, record the move to the ordinary procedure and agreed timetable, and “strongly” urging them to agree on costs.
Previously, a salesperson won a major wrongful dismissal case after 17 years of service.
