In Birnbaum v Dr. Chan [Birnbaum], the Ontario Superior Court of Justice (“ONSC”) held that the employer had established after-acquired cause—that is, reasons for dismissal for cause that are discovered after the employee had been terminated. Following the employee’s dismissal, the employer discovered through an audit of its electronic medical records system that the employee had, over several years, used the clinic’s system to obtain medical records for herself and family members, and misrepresented the employer physician as part of her circle of care. The ONSC found that this repeated misconduct constituted a serious breach of patient privacy and confidentiality justified dismissal for cause.

The ONSC also considered whether a medical clinic had discriminated against and wrongfully dismissed a long-service employee who sought to work remotely because of her age and ongoing health issues. The ONSC ultimately dismissed the employee’s claims, finding that the employer had reasonably accommodated her requests and that there was insufficient evidence that her age or medical conditions played any role in the termination decision.

This decision highlights the importance of the accommodation process, the central role that privacy and confidentiality obligations play in certain workplaces, and the continuing availability of after-acquired cause as a defense in Ontario.

Background

The employee was a 70-year-old medical secretary who had worked for the employer’s medical clinic for approximately 19 years.

In March 2020, during the early stages of the COVID-19 pandemic, the clinic temporarily closed. When the clinic later resumed operations, the employee expressed concerns about returning to work because of her age, certain health conditions, and her husband’s health vulnerabilities. She requested permission to work remotely.

The clinic advised that remote work was not feasible given the nature of her duties, which included scheduling appointments, processing patient information, handling medical records, and communicating with patients. The clinic also raised concerns regarding confidentiality, data security, and the practical limitations of operating a small medical practice remotely.

Rather than immediately rejecting the employee’s request, the clinic implemented several measures designed to facilitate her return to work. These included a graduated return-to-work plan, personal protective equipment, a dedicated workspace separated from others, and a paid two-week leave.

The employee ultimately did not return to work. The employer later terminated her employment and provided a termination package that included approximately 12 months of salary continuance.

Following her termination, the employee commenced an action alleging wrongful dismissal, discrimination on the basis of age and disability, failure to accommodate, reprisal, and bad-faith conduct.

During the litigation, the employer discovered that the employee, over several years, had created patient charts for herself and her daughter within the clinic’s electronic medical records system and had used those records to obtain medical services without authorization. The employee had previously been warned about privacy concerns and had received extensive training on patient confidentiality and electronic medical records throughout her employment. Despite these warnings and training, audit logs showed that she continued accessing and using the clinic’s systems for personal and family medical matters until her termination in 2020. The employer’s relied on this conduct as after-acquired cause.

Decision

No Breach of the Duty to Accommodate

The ONSC rejected the employee’s Human Rights Code claims and found that the employer had reasonably accommodated her requests.

The ONSC accepted that the employee’s age and health concerns engaged accommodation obligations. However, accommodation is a process that requires both parties to participate. The evidence demonstrated that the clinic considered the employee’s request, assessed the feasibility of remote work, and implemented multiple alternative measures designed to reduce risk and facilitate a safe return to work.

The ONSC found that permitting remote work would have created significant operational and confidentiality concerns for a small medical practice and was not a reasonable accommodation in the circumstances.

Importantly, the ONSC noted that the employer’s did not simply reject the request outright. Rather, they engaged with the employee, considered available options, and implemented accommodations before concluding that remote work was not feasible.

No Discrimination, Reprisal, or Bad Faith

The ONSC also found insufficient evidence that the employee’s age, disability, or accommodation request caused her termination.

Similarly, the ONSC rejected allegations of reprisal and bad-faith conduct, concluding that the employer’s had acted reasonably throughout the accommodation process and termination.

After-Acquired Cause Established

The most significant aspect of the decision was the ONSC’s finding that the employer’s had established after-acquired just cause.

We previously examined the doctrine of after-acquired cause, which allows employers in certain circumstances to rely on serious misconduct discovered after an employee’s dismissal to establish just cause. For a more detailed discussion, see our previous blog.

In Birnbaum, the employer’s after-acquired cause defense was based on evidence that the employee had repeatedly misused the clinic’s electronic medical records system. The ONSC found that the employee had received prior warnings and extensive privacy training throughout her employment yet continued the conduct for years. Furthermore, the ONSC found that this conduct violated the clinic’s privacy and recordkeeping obligations and undermined the trust that was fundamental to the employment relationship.

Given the employee’s role as a medical secretary, confidentiality and the proper handling of patient information were central aspects of her position. The ONSC concluded that the misconduct “struck at the heart of the employment relationship”, such that it could not continue.

As a result, the ONSC held that the employer had established after-acquired cause and dismissed the employee’s claims.

Key Takeaways

Birnbaum provides several important lessons for employers dealing with accommodation requests, privacy concerns, and wrongful dismissal litigation:

• Privacy Breaches Can Strike at the Heart of the Employment Relationship: Not every policy violation will justify dismissal for cause. However, where an employee occupies a position that requires a high degree of trust and access to confidential information, misuse of that information may fundamentally undermine the employment relationship. Employers operating in healthcare, financial services, professional services, and other privacy-sensitive industries should ensure that confidentiality obligations are clearly communicated, documented, and consistently enforced.
• Reasonable Accommodation Does Not Mean Preferred Accommodation: A key factor in this employer’s success was that it did not simply reject the employee’s request to work remotely. The ONSC focused on the employer’s efforts to assess the request, consider alternatives, and implement measures designed to address the employee’s request. Employers are not required to provide an employee’s preferred accommodation. However, they should be able to demonstrate that requests were considered carefully and that alternative solutions were explored before concluding that further accommodation would create undue hardship.
• Documentation Remains Critical: The ONSC relied heavily on documentary evidence throughout its analysis, including evidence relating to the accommodation process and the employee’s improper use of patient records. Employers should maintain clear records of accommodation discussions, operational assessments, workplace policies, investigations, and employee conduct. Well-documented evidence often becomes the foundation of a successful defense when disputes proceed to litigation.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.