Years of covert patient record access undermined her entire legal case
An Ontario court has dismissed the wrongful dismissal and human rights claims of a 70-year-old medical secretary who was terminated during the COVID-19 pandemic after nearly 19 years of service, finding that her employer had just cause to end the employment relationship. Justice Pollak of the Ontario Superior Court of Justice released the decision on April 15, 2026, in Birnbaum v. Dr. Chan, ruling that the employee's repeated, unauthorized use of the clinic's electronic medical records system "strikes at the heart of the employment relationship."
Elka Birnbaum began working full-time as a medical secretary for respirologist Dr. Victoria Chan in September 2001. After the clinic's workload slowed, she was given written notice of termination in August 2014, effective December 31, 2015. In January 2016, she told Dr. Chan she could not afford to lose her job, and Dr. Chan agreed to reduce her position to part-time hours in order to continue her employment. Following Ontario's enactment of a Declaration of Emergency on March 17, 2020, Birnbaum emailed Dr. Chan on March 22 saying she no longer felt safe coming in, citing her age, her ongoing health issues, and those of her husband, and asked to work from home.
Dr. Chan gave her a two-week paid leave, then terminated her employment without cause effective April 3, 2020, offering 12 months' salary continuation in lieu of notice. Birnbaum was earning $18,200 per year at the time of dismissal. The defendants later withdrew the 12-month salary continuation offer after discovering what they characterized as grounds for termination with cause, though they still provided pay in lieu of notice in accordance with the statutory minimums under the Employment Standards Act 2000, amounting to an all-inclusive payment of $2,877.39.
A broken trust, documented in audit logs
The after-acquired cause stemmed from Birnbaum's use of the clinic's Accuro electronic medical records platform to create patient charts for herself and her daughter, access medical records from multiple hospitals, and copy Dr. Chan's name onto scan requisitions to route reports into charts that should not have existed in the clinic at all.
Dr. Chan testified that she first discovered the breaches in 2014 and warned Birnbaum in a meeting, followed by a written email on November 26, 2014. Birnbaum denied receiving it, though in cross-examination she admitted she may have received it and deleted it. Dr. Chan testified that both the Ontario College of Physicians and Surgeons and the Canadian Medical Protective Association confirmed the conduct was "an improper use of the Clinic's electronic medical records tools."
Audit logs showed that following an initial period of cessation, Birnbaum resumed the unauthorized access and continued it up until her dismissal in April 2020. She had also attended multiple privacy training seminars and signed confidentiality agreements stating she understood and would abide by the clinic's policies. The court found that she knew or ought to have known the severity of her misconduct as of November 2014.
The remote work claim and the duty to accommodate
Birnbaum argued that Dr. Chan's refusal to allow her to work from home was a breach of the duty to accommodate under the Ontario Human Rights Code, citing her age, her health conditions, including a 2019 double bypass surgery following a heart attack, and her husband's health. She also separately alleged discrimination on the basis of age and disability, and claimed reprisal and breach of the Occupational Health and Safety Act and bad faith in her termination. The court dismissed all of these claims.
On the accommodation issue, the court rejected the argument, noting Dr. Chan had already arranged for Birnbaum to work in isolation on a separate floor with personal protective equipment. Justice Pollak found that Dr. Chan, a small-clinic operator who was simultaneously working in Ontario hospitals as a respirologist during the pandemic, did not have remote infrastructure in place and could not reasonably have established it on such short notice while protecting patient confidentiality. The court noted that Birnbaum "did not provide any assistance or ideas on how she could be accommodated other than working from home or how she could work from home while performing her duties and complying with confidential requirements of her job." On the age and disability discrimination claim, Justice Pollak found that the evidence regarding inquiries into Birnbaum's possible retirement was not sufficient to satisfy her burden of proving discrimination on those grounds.
Justice Pollak concluded: "I find that confidentiality and proper use of the clinics database and computer system was a fundamentally important requirement of the employment relationship and that it is reasonable on the basis of the evidence to find that Dr. Chan could not trust the Plaintiff to fulfill that requirement."
Birnbaum v. Dr. Chan, 2026 ONSC 2009
