In Birnbaum v. Dr. Chan, 2026 ONSC 2009, the Ontario Superior Court confirmed that employers may be able to rely on misconduct discovered after an employee’s termination to justify dismissal for cause through the doctrine of after-acquired cause.
The decision also provides valuable guidance on two issues that frequently arise in the workplace: the importance of maintaining thorough documentation of employee misconduct, as well as the need to meaningfully assess accommodation requests, even where an employee’s preferred accommodation cannot be provided.
Background
The employee, Ms. Birnbaum, worked as a medical secretary for Dr. Chan’s medical clinic for approximately 19 years.
During the COVID-19 pandemic, Ms. Birnbaum requested to work remotely because she no longer felt safe working in person due to ongoing health concerns. In response, the Clinic provided her with a two-week paid leave while it considered her request. At the conclusion of the leave, the Clinic advised that it could not accommodate remote work because of patient confidentiality and privacy requirements associated with handling electronic medical records. The Clinic also advised Ms. Birnbaum that her employment was being terminated without cause due to the significant downturn in business caused by the pandemic and offered her 12 months’ salary continuance in lieu of notice.
Following the termination, the Clinic discovered that Ms. Birnbaum had repeatedly accessed and modified her own electronic medical records, as well as the medical records of family members, using the Clinic’s electronic medical records system. The misconduct had occurred despite a prior written warning issued in 2014 for similar conduct and mandatory privacy and confidentiality training completed in 2017 and 2019.
Upon discovering this misconduct, the Clinic discontinued the salary continuance payments, taking the position that the newly discovered conduct constituted after-acquired cause for dismissal.
Ms. Birnbaum subsequently commenced a wrongful dismissal action, alleging, among other things, that the Clinic had breached the Human Rights Code by failing to accommodate her disability.
Decision
The Court dismissed Ms. Birnbaum’s claims, finding both that the Clinic had satisfied its duty to accommodate and that the employee’s misconduct established after-acquired cause.
No Breach of the Duty to Accommodate
The Court rejected the argument that the Clinic failed to accommodate Ms. Birnbaum’s disability by refusing her request to work remotely.
The evidence demonstrated that the Clinic had taken several steps to address her concerns during the pandemic, including providing personal protective equipment, assigning her to a separate floor of the clinic, and providing her with a private office. The Court accepted that allowing remote work was not feasible because of legitimate patient privacy and confidentiality concerns associated with the employee’s role.
The Court concluded that the Clinic had reasonably considered the accommodation request and implemented appropriate alternative measures. The duty to accommodate does not require an employer to provide an employee’s preferred accommodation where another reasonable accommodation is available.
After-Acquired Cause Upheld
The Court also accepted the Clinic’s after-acquired cause defence.
In doing so, it emphasized that compliance with patient privacy and confidentiality obligations was fundamental to the employment relationship. Ms. Birnbaum’s repeated unauthorized access to confidential medical records irreparably undermined the trust necessary for her position and struck at the heart of the employment relationship.
Importantly, the Court found that Ms. Birnbaum knew, or ought to have known, the seriousness of her conduct. She had previously been warned about similar misconduct and had completed multiple rounds of privacy and confidentiality training. This history demonstrated that the misconduct was both knowing and serious, supporting the finding that dismissal for cause would have been justified had the Clinic been aware of it at the time of termination.
Key Takeaways for Employers
1. Thorough documentation can be decisive
This decision highlights the importance of maintaining comprehensive documentation relating to employee misconduct. The Clinic’s ability to rely on after-acquired cause was significantly strengthened by its documented disciplinary history, records of privacy training the employee undertook, and written acknowledgements. Those records provided compelling evidence that the employee understood the applicable standards and had previously been warned about similar misconduct; both of which is important when making a case for termination for cause.
Employers should ensure that workplace policies, training, performance concerns, and disciplinary measures are consistently documented and retained.
2. A reasonable accommodation is not necessarily the employee’s preferred accommodation
The decision also reinforces that the duty to accommodate requires employers to reasonably assess accommodation requests—it does not require them to grant the specific accommodation requested by the employee.
The Clinic was successful because it could demonstrate that it:
- carefully considered the employee’s request;
- identified legitimate operational reasons why remote work was not feasible; and
- implemented reasonable alternative accommodations to address the employee’s concerns.
When responding to accommodation requests, employers should engage in a meaningful accommodation process, document the steps taken to assess available options, and be prepared to explain why a requested accommodation cannot be implemented. Courts will focus on the reasonableness of the employer’s process and the accommodations actually provided, rather than whether the employee received their preferred solution.
Written by: Samantha Sutherland-Archibald