If your employer fails to respond to your Form 1 Application at the Human Rights Tribunal of Ontario (HRTO) within the mandatory 35-day deadline, you can request a default proceeding. The tribunal may hold a default hearing without the employer present, potentially awarding you financial compensation for lost wages and injury to dignity.
Filing a workplace discrimination claim can be incredibly stressful, and it is natural to worry about how your employer will react. ヾ However, sometimes an employer or former boss simply ignores the legal paperwork altogether. When a respondent refuses to participate in the Human Rights Tribunal of Ontario (HRTO) process, the system does not simply grind to a halt.
In Ontario, the law is designed to protect applicants from employers who try to evade justice by burying their heads in the sand. ⚠ While you may feel frustrated by their silence, a non-response can actually clear a faster path toward a resolution. Whether you worked in a massive corporate office in Toronto or a small retail shop in Ottawa or Mississauga, the HRTO has strict rules for handling employers who do not show up.
Step-by-Step Default Process at the HRTO in Ontario
When an employer ignores a human rights application, you must follow specific procedural steps to move your case forward. 📋 You cannot simply declare yourself the winner; you must formally request that the tribunal proceed without the respondent. The process generally follows these stages.
Step 1: Waiting the Mandatory 35 Days
After you submit your initial Form 1 Application, the HRTO will deliver a Notice of Application to your employer. ⏳ Under the tribunal rules, the respondent has exactly 35 days to file a formal response (Form 2). You must wait for this legal window to close entirely before taking any further action.
Step 2: Default Under Rule 5.5
Unlike other civil courts, the HRTO does not issue an independent procedural document called a “Notice of Default.” 📩 Instead, under Rule 5.5 of the HRTO Rules of Procedure, if an employer fails to respond within 35 days, the tribunal has the discretionary power to deem them to have accepted all allegations in your application, though this is not automatic. If the tribunal exercises this power, the employer loses the right to participate further. If they suddenly wish to participate later, they must file a formal request and provide an exceptionally compelling reason for their delay.
Step 3: Attending a Default Hearing
The tribunal will typically schedule a default merit hearing where only you and your lawyer are present. 🗣 Even though the employer is absent, you must still prove a “prima facie” case, meaning you must present enough initial evidence to show that workplace discrimination actually occurred under the Ontario Human Rights Code. You will testify, submit your documents, and explain the damages you are seeking.
How Much Does it Cost in Ontario?
Pursuing a default judgment involves several financial factors. 💰 While the tribunal itself is accessible, preparing for a legal hearing still requires careful planning. Consider the following costs:
- HRTO Filing Fees: The HRTO does not charge any filing fees. Submitting your Form 1 and attending a default hearing is completely free.
- Legal Representation: Most Ontario employment law firms charge a contingency fee of 25% to 35% of your final financial award. Alternatively, a lawyer may charge a flat block fee of $2,000 to $5,000 CAD to prepare and represent you at a default hearing.
- Enforcement Costs: If you win, the HRTO cannot force the employer to pay. You may need to spend $100 to $300 CAD in filing fees at the Small Claims Court or Superior Court of Justice to enforce the order and garnish the employer’s bank accounts.
How Long Does the Process Take?
A default proceeding is generally faster than a fully contested hearing, though significant delays persist. 🕐 Once the 35-day deadline passes, due to chronic backlogs at the HRTO, the real timeline to schedule a default hearing and receive a final written decision typically ranges from 12 to 24 months in total. This extensive timeline reflects the administrative pressures currently faced by Tribunals Ontario.
Frequently Asked Questions (FAQ)
Do I automatically win if the employer doesn’t respond?
No. You do not automatically win a default judgment. You must still provide credible evidence to the HRTO adjudicator proving that your human rights were violated. If your evidence is weak, your application could still be dismissed.
Can the employer reverse a default decision?
Yes, but it is very difficult. The employer would have to file a Request for Reconsideration and prove they had an exceptional reason for missing the deadline, such as a severe medical emergency or a critical administrative error by the tribunal.
What happens if the company closed down or went bankrupt?
If the business has legally declared bankruptcy, the HRTO proceedings are automatically paused (stayed) under federal law. You may need to seek advice from an Ontario lawyer on whether you can hold the company’s directors personally liable instead.
How do I actually get my money after a default judgment?
The HRTO issues the order, but they do not collect the money. You must take a certified copy of the tribunal’s decision to a local Ontario civil court (like Small Claims Court) to enforce it through wage garnishment or property liens.
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