If you file a wrongful dismissal claim in Ontario and your former employer ignores it, you do not automatically lose. Under the Rules of Civil Procedure, if they fail to file a Statement of Defence within 20 days, you can obtain a Default Judgment from the Superior Court of Justice. The basic fee to file your initial claim starts at approximately $229 CAD.
When you are fired and decide to pursue your rightful severance pay, the last thing you expect is for your former company to simply ghost you and your legal team. 😲 However, ignoring legal documents is a surprisingly common tactic used by disorganized businesses or arrogant employers in Ontario. They mistakenly believe that if they refuse to acknowledge the lawsuit, it will eventually go away and you will run out of money.
Fortunately, the Ontario legal system does not allow a defendant to permanently stall the wheels of justice by burying their head in the sand. Whether you are dealing with a local tech startup in Toronto, a manufacturing plant in Mississauga, or a retail chain in Ottawa, the rules are clear. When an employer ignores a properly served Statement of Claim, you can ask the court to note them in default. This effectively means they forfeit their right to defend themselves, paving the way for you to automatically win your wrongful dismissal case and claim your pay in lieu of notice.
Step-by-Step Process for Default Judgments in Ontario
Securing a default judgment is a precise procedural process. You must follow the court rules strictly to ensure the judge grants your request without delays. 📋 Here is how a law firm generally handles an unresponsive employer.
Step 1: Drafting and Serving the Statement of Claim
The process begins when your lawyer issues a formal Statement of Claim at the Superior Court of Justice or the Ontario Small Claims Court. Once issued, this document must be personally served to the company. You cannot simply mail it to their general inbox; a professional process server will usually deliver the documents directly to a corporate officer or the registered head office to prove legal delivery.
Step 2: The 20-Day Countdown
Once the employer is formally served in Ontario, the clock starts ticking. ⏱️ Under the Rules of Civil Procedure, a defendant located in Ontario has exactly 20 days to file a Statement of Defence. If the employer is located in another Canadian province, they have 40 days, and if they are international, they get 60 days. During this period, your legal team simply waits to see how the employer responds.
Step 3: Noting the Employer in Default
If day 21 arrives and no defence has been filed, your lawyer can file a requisition with the court registrar to officially “note the defendant in default.” Once this happens, the employer is legally barred from filing a defence or participating in the lawsuit without seeking special permission from a judge to reverse the default status.
Step 4: Motion for Default Judgment
Noting them in default does not instantly put money in your bank account. 💰 Your employment lawyer must now bring a Motion for Default Judgment. Because wrongful dismissal damages (severance pay) are “unliquidated” (meaning they must be calculated based on your age, tenure, and character of employment), a judge must assess the evidence. Your lawyer will submit an affidavit detailing your lost wages and mitigation efforts, asking the judge to award the specific common law severance amount.
Step 5: Enforcing the Court Order
Winning the judgment is a massive victory, but you still need to collect the funds. If the employer continues to ignore the situation, your lawyer can use the court order to enforce payment. This can involve garnishing the company’s business bank accounts, putting a lien on their corporate real estate, or authorizing the local sheriff to seize company assets to pay your severance.
How Much Does it Cost in Ontario?
Navigating the civil court system involves specific government filing fees. 💵 If your employer ignores the claim, the costs are generally lower because you skip the expensive discovery and trial phases:
- Issuing the Claim: Filing a Statement of Claim in the Superior Court of Justice costs approximately $229 CAD. In Small Claims Court, it is roughly $108 CAD.
- Noting in Default: Filing the requisition to note in default usually has no direct fee or a minimal administrative cost depending on the court level.
- Motion for Default Judgment: Filing the motion record generally costs around $181 CAD in the Superior Court.
- Lawyer Fees: Most employment law firms work on a contingency fee basis, taking 25% to 33% of the final recovered amount. Because a default judgment requires less hours, some lawyers may negotiate a different fee structure.
How Long Does the Process Take?
Obtaining a default judgment is significantly faster than a traditional multi-year lawsuit, but it still requires patience.
- Waiting Period: The initial wait for the Statement of Defence is strictly 20 days (if served within Ontario).
- Motion Approval: Waiting for a judge to review your affidavit and sign the default judgment order can take 2 to 4 months due to administrative backlogs in cities like Toronto or Brampton.
- Enforcement Phase: Garnishing a bank account or seizing assets can add an additional 4 to 8 weeks to the timeline once the judgment is in hand.
Default Judgment vs. Full Trial Comparison
| Legal Process | Timeframe to Resolve | Employer Participation |
|---|---|---|
| Default Judgment | 3 to 6 months | None (Failed to respond) |
| Summary Judgment Motion | 8 to 14 months | Active (Filing defence and affidavits) |
| Full Civil Trial | 1.5 to 3 years | Highly Active (Discoveries, witnesses) |
Frequently Asked Questions (FAQ)
Can an employer cancel a default judgment in Ontario?
Yes, it is possible. An employer can file a motion to “set aside” the default judgment. However, they must prove to the judge that they had a reasonable excuse for ignoring the claim (such as not being served properly) and that they have a valid defence against your wrongful dismissal lawsuit.
What if the company went bankrupt and that is why they ignored me?
If the company has officially filed for bankruptcy, all civil litigation, including your wrongful dismissal claim, is automatically stayed (paused). You will likely need to file a proof of claim with the bankruptcy trustee and explore the federal Wage Earner Protection Program (WEPP) instead of seeking a default judgment.
Do I still have to prove I looked for a new job?
Yes. Even if the employer defaults, Ontario common law still requires you to mitigate your damages. Your lawyer must present an affidavit to the judge outlining the jobs you applied for. If you found a new job quickly, your severance award may be adjusted accordingly.
Can I get a default judgment through the Ministry of Labour?
No, default judgments are mechanisms of the civil court system (Superior Court or Small Claims). The Ministry of Labour conducts its own investigations and can issue orders to pay for Employment Standards Act (ESA) minimums, but they do not use the civil default judgment process.
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