Executive Summary: Key Legal and Evidentiary Issues

• Central dispute concerned whether the plaintiff’s termination during the early COVID-19 pandemic was discriminatory and in breach of the Ontario Human Rights Code based on age and disability.
• A key issue was whether the employer met its procedural and substantive duty to accommodate the plaintiff’s request to work from home, or whether denying remote work and instead offering one year’s pay was reasonable in the circumstances.
• The court had to decide if the plaintiff’s creation and use of electronic medical charts for herself and her daughter in the clinic’s Accuro system amounted to serious misconduct justifying after-acquired just cause.
• Evidentiary focus rested on the Accuro audit logs, privacy warnings, training records, and the disputed 2014 warning email to determine the plaintiff’s knowledge of privacy obligations and continued misuse of the system.
• The case required a contextual assessment of accommodation duties and “undue hardship” for a small medical clinic lacking pre-existing remote work infrastructure at the outset of the pandemic.
• The court ultimately evaluated whether the plaintiff proved any breach of the Human Rights Code, Occupational Health and Safety Act (reprisal), or bad-faith conduct, or whether the employer’s trust in the plaintiff had been irreparably broken by her privacy breaches.

Background and employment history
The case arises from a wrongful dismissal and human rights claim brought by Elka Birnbaum, a medical secretary, against her long-time employer, respirologist and sleep-disorders specialist Dr. Victoria Chan and Dr. Victoria Chan Medicine Professional Corporation. Ms. Birnbaum worked for approximately 19 years at Dr. Chan’s small clinic, first on a full-time basis from September 2001 and later on a part-time basis of 14 hours per week. The clinic operates out of a three-storey house with Dr. Chan, two other medical secretaries, and additional physicians providing sleep and respirology services. In 2014, as Dr. Chan’s practice slowed and the clinic no longer required the plaintiff’s full-time services, Dr. Chan gave her written working notice of termination effective December 31, 2015. When Ms. Birnbaum explained in early 2016 that she could not afford to lose her job, Dr. Chan agreed to convert the position to part-time hours to keep her employed, notwithstanding that this was not ideal for the clinic’s business needs.

Medical issues, return to work and early COVID-19 arrangements
In March 2019, Ms. Birnbaum suffered a heart attack and underwent double bypass surgery. She took a four-month medical leave and then returned to work on a graduated schedule in line with her cardiologist’s recommendations, ultimately resuming her full part-time duties. During this period the clinic had transitioned from paper charts to an electronic medical records system, Accuro, which contained sensitive patient information and linked to a local hospital’s system. As the COVID-19 pandemic began, the Government of Ontario declared a state of emergency on March 17, 2020. Dr. Chan responded by implementing strict health and safety measures. In-person appointments were suspended or moved to virtual or telephone formats. To protect staff, Dr. Chan allowed secretaries to work in separate rooms or on different floors, provided personal protective equipment, and physically isolated Ms. Birnbaum on her own floor and office. Patients were not attending the clinic in person, and the clinic’s workload dropped by more than 50 percent.

The request to work from home and termination
On March 22, 2020, the day before her next scheduled shift, Ms. Birnbaum emailed Dr. Chan stating that she no longer felt safe working at the clinic because of her age, her health history, and her husband’s health conditions. She requested to work remotely from home. Dr. Chan denied this request but immediately placed her on a two-week fully paid leave. At the end of the paid leave, Dr. Chan advised that because of the severe downturn in business, the absence of any remote-work infrastructure suitable for secretarial staff, and serious confidentiality concerns about accessing Accuro from home, it was not feasible to continue her employment. On April 3, 2020, the defendants terminated her employment without cause, effective immediately, and advised that she would receive one year of salary continuation until March 31, 2021. At that time, Ms. Birnbaum was 70 years old and earning $18,200 per year plus four weeks’ paid vacation. The defendants initially paid her $2,877.39 on dismissal and later maintained that she had received her minimum statutory entitlements.

Claims advanced by the plaintiff
In her action, Ms. Birnbaum alleged that the termination was discriminatory and in breach of the Ontario Human Rights Code on the grounds of age and disability, and that the defendants failed in their procedural and substantive duty to accommodate her by not seriously considering her request to work from home. She also pleaded that the termination was a reprisal under the Occupational Health and Safety Act, given that she raised safety concerns about working in-person during the pandemic. She further alleged bad-faith conduct in the manner of dismissal and claimed that the defendants wrongfully attempted to rely on after-acquired cause to avoid paying the promised 12 months’ salary continuation. Her monetary claims were framed around a 24-month notice period worth $36,400 in salary, $50,000 in general damages for injury to dignity, feelings and self-respect under section 46.1 of the Code, $54,600 in Code-based income loss compensation, and additional moral or punitive damages, capped in total at $200,000 due to the Simplified Procedure limit.

The duty to accommodate and remote work
The court reviewed the legal framework on accommodation and undue hardship, including the Supreme Court of Canada’s decisions in Hydro-Québec and British Columbia (Public Service Employee Relations Commission) v. BCGSEU. Those authorities confirm that an employer must take reasonable steps to modify work or duties up to the point of undue hardship, but is not obligated to provide the employee’s preferred or ideal accommodation and is not required to fundamentally transform its operations. The analysis is contextual and individualized. For this small medical clinic, the court accepted Dr. Chan’s evidence that in March 2020 she had no remote-work strategy or systems in place, that building a secure remote environment for handling highly confidential medical information would have taken time, resources, and technical support she did not have, and that she was simultaneously being called into hospital work as a respirologist in the midst of the public health crisis. Dr. Chan expressed serious concerns about secretaries accessing Accuro from home where discussions could be overheard and data security not assured. She also faced a significant drop in patient volume and workload. The court found that Dr. Chan had already made substantial in-clinic accommodations for Ms. Birnbaum’s health risks: creating physical separation from others, limiting in-person visits, and providing PPE. When the plaintiff then sought to work only from home and later repeated this demand after the two-week paid leave, she did not propose any other workable measures or suggest how confidential requirements could be maintained if she were granted remote access. On this evidence, the judge concluded that Dr. Chan accommodated the plaintiff to the point of undue hardship in the specific context of a small clinic at the outset of COVID-19, without pre-existing secure remote infrastructure. The failure to implement remote work was found to be reasonable rather than a breach of the Code.

Findings on discrimination, age and disability, and reprisal
Beyond the accommodation issue, the plaintiff alleged that inquiries about her possible retirement and the timing of her termination evidenced age-based or disability-based discrimination. The court emphasized that these claims had to be proven on a balance of probabilities and assessed in light of the entire employment relationship, including the history of Dr. Chan converting a full-time role to part-time specifically to preserve the plaintiff’s job. The clinic itself was small, with a modest staff complement and limited resources. The judge held that the isolated evidence regarding retirement discussions was insufficient to establish that the decision to terminate was based on age or disability. Rather, the court accepted that the downturn in work, the confidentiality constraints, and the inability to implement remote work quickly for a secretary role using Accuro explained the termination. The claim of reprisal under the Occupational Health and Safety Act also failed. The court found that Dr. Chan did not react punitively to the plaintiff’s safety concerns; instead, she immediately granted a paid leave and then, in light of the ongoing business reality and inability to further accommodate, elected to provide one year’s pay in lieu of notice. Overall, the court held that there was no proven breach of the Human Rights Code, no reprisal, and no bad faith in the manner of termination.

Privacy obligations, electronic medical records and after-acquired cause
A major evidentiary and legal issue arose from the defendants’ assertion of after-acquired cause. After termination, when the plaintiff asked the clinic to provide the “medical chart” she had created for herself in Accuro, Dr. Chan reviewed the system’s audit logs and related records. These revealed that, starting around 2013–2014, the plaintiff had used the clinic’s Accuro system to create a chart in her own name and another chart for her daughter Marnee, even though neither had been formally accepted as patients of Dr. Chan at that time. Using those charts, the plaintiff had requested or allowed hospital reports, imaging, and other test results for herself and family members to be routed to the clinic by listing Dr. Chan as a treating physician or copying her on requisitions, thereby importing sensitive records into the clinic’s database. The Accuro login portal prominently warned users that only authorized persons may use the system and that misuse could carry legal consequences. In addition, the plaintiff had completed formal training on patient privacy and confidentiality—including a 2017 course and later seminars—and signed documentation acknowledging her understanding of those obligations. In 2014, when Dr. Chan first discovered that the plaintiff had used the system to access and store medical information for herself and relatives, she met with the plaintiff to warn that this was a serious breach of confidentiality, and she documented the warning in a November 26, 2014 email. She also reported the privacy incident to McKenzie Health’s Privacy Officer and engaged with the Information and Privacy Commissioner. The plaintiff disputed having received the warning email but conceded under cross-examination that she might have received and deleted it. The audit logs showed a pattern: an initial cessation of improper access after 2014 followed by a later resumption of unauthorized use that continued up to her dismissal. Dr. Chan also discovered evidence that the plaintiff generated a letter template under the name of another physician (Dr. Steven Gold) to request records, and that other clinic employees, thinking the plaintiff was a genuine patient, had uploaded and handled documents in her chart. This meant the plaintiff’s own confidential information was exposed within the clinic, and Dr. Chan was obliged to report the misconduct to her professional regulators. On this record, the court found that the plaintiff knew or ought to have known, by virtue of the 2014 warning, repeated training, and on-screen system notices, that her conduct was a serious breach of privacy and improper use of the clinic’s EMR system, yet she persisted in creating, viewing, and modifying charts for herself and her daughter and in misrepresenting Dr. Chan as part of her “circle of care” to obtain records.

Application of the just cause test
Applying the well-established Dowling and McKinley framework, the court examined the nature and extent of the misconduct, the surrounding employment context, and whether dismissal for cause was a proportionate response. The trust relationship between a physician and her medical secretary, and between the clinic and its staff generally, was characterized as critical, given the professional, legal, and ethical duties around patient confidentiality. The plaintiff’s actions forced Dr. Chan to report herself and her clinic to regulators for privacy breaches that she had not authorized and that arose solely from the plaintiff’s misuse of the EMR tools. The judge rejected the suggestion that Dr. Chan had trivialized or condoned the conduct, finding instead that the evidence of the 2014 warning, the audit log pattern, and subsequent training all pointed to clear prior notice to the plaintiff and a conscious decision on her part to continue the misconduct. In these circumstances, the court concluded that confidentiality and proper use of the clinic’s database were fundamental conditions of the employment relationship and that the plaintiff’s ongoing breaches struck at the heart of that relationship. The misconduct was therefore irreconcilable with continued employment and amounted to just cause for dismissal on an after-acquired basis.

Outcome, successful party and monetary result
In conclusion, the court held that the defendants had just cause to terminate the plaintiff’s employment, that they had reasonably accommodated her during the COVID-19 pandemic to the point of undue hardship, and that she failed to prove any breach of the Human Rights Code, the Occupational Health and Safety Act, or any bad-faith conduct. All of the plaintiff’s claims for wrongful dismissal, human rights, reprisal, and additional damages were dismissed. As a result, Ms. Birnbaum received no damages or monetary award on her claims, while Dr. Chan and her professional corporation were the successful parties. The judge ordered that the defendants are entitled to their costs of the action on a partial indemnity basis, inclusive of taxes and disbursements; however, the specific dollar amount of those costs was left to be determined by agreement or, failing that, by brief written submissions. Accordingly, the total amount ordered in favour of the successful defendants cannot be precisely determined from the decision, as the quantum of costs had not yet been fixed at the time of the reasons.