When the COVID-19 pandemic hit, remote work requests became one of the most common flashpoints between employers and employees. Birnbaum v. Dr. Chan is a rare, fully litigated Ontario decision addressing what a small employer actually has to do to meet its duty to accommodate during a public health emergency, and it also shows how an employer’s after-acquired discovery of an employee’s own misconduct can defeat a wrongful dismissal claim entirely.
Background
Elka Birnbaum worked as a medical secretary for Dr. Victoria Chan’s respirology and sleep disorder clinic for approximately 19 years. When the Ontario government declared a state of emergency in March 2020, Ms. Birnbaum, then 70 years old with underlying health issues, emailed the clinic stating she no longer felt safe attending her scheduled shifts and asked to work from home. Dr. Chan, a small clinic that handled highly confidential patient records through third-party software linked to a hospital network, gave Ms. Birnbaum two weeks of paid leave rather than an immediate answer. At the end of that leave, the clinic advised that remote work was not feasible given the confidentiality requirements of its patient record system and the sudden, drastic reduction in patient volume, and terminated her employment with 12 months’ salary continuation.
After Ms. Birnbaum commenced litigation, Dr. Chan discovered, through an audit of the clinic’s electronic medical record system, that Ms. Birnbaum had created patient charts for herself and her daughter in the clinic’s database without authorization, going back to at least 2014, and had continued the practice after being warned to stop. Dr. Chan withdrew the offer of salary continuation and paid only the statutory minimums, asserting after-acquired cause.
| “The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.”
– Pollak J., quoting Hydro-Quebec v. Syndicat des employe-e-s de techniques professionnelles et de bureau d’Hydro-Quebec, 2008 SCC 43 |
The Issues
| ISSUE 1
Did the clinic breach its duty to accommodate by denying a remote work request during the COVID-19 pandemic? |
ISSUE 2
Did the clinic have after-acquired just cause based on the employee’s unauthorized use of its patient database? |
The Court’s Analysis
Accommodation is contextual, not a fixed standard
Ms. Birnbaum pointed to cases involving large employers that already had remote work set up before the pandemic. The Court found those cases didn’t fit here. The duty to accommodate is fact-specific, and an employer only has to offer a reasonable solution, not the employee’s preferred one. Dr. Chan ran a small clinic with no existing remote setup, had already put in-office safety measures in place (separate floors, PPE, virtual visits), was facing a steep drop in patients, and had genuine confidentiality concerns tied to the clinic’s link to a hospital records system.
The Court found it simply wasn’t realistic, in the earliest weeks of the pandemic, to build a secure remote setup on short notice, and that the two weeks of paid leave offered in the meantime was itself a reasonable accommodation. The Human Rights Code and Occupational Health and Safety Act claims were both dismissed.
After-acquired cause: a warning that was not heeded
More damaging to the employee’s case was what the clinic discovered after she sued: she had, without permission, created and repeatedly accessed patient files for herself and her daughter in the clinic’s confidential system, had been specifically warned about this in 2014, and did it again in later years anyway. Given the trust and privacy obligations at the heart of a medical practice, the Court found this was serious enough, on its own, to justify dismissal for cause.
Key Takeaways
| For Employers | For Employees |
| Document your accommodation process contemporaneously.
Dr. Chan’s evidence about the software’s confidentiality risks, the sudden drop in patient volume, and the interim paid leave was detailed and specific. That level of documentation is what distinguished this case from the large-employer precedents the employee relied on. Undue hardship is measured against your actual circumstances. A small clinic without existing remote infrastructure is not held to the same standard as a large corporation with established remote work systems. Your size, resources, and the urgency of the moment are all relevant. After-acquired cause remains available, and valuable. Misconduct discovered after termination, even years after it began, can still support a for-cause defence if it occurred before termination and is serious enough to breach the employment relationship. A documented warning strengthens a later cause finding. The 2014 warning to the employee, confirmed in writing at the time, was central to the Court’s conclusion that the later conduct was not innocent. Keep records of warnings, even informal ones, in writing. |
A denied accommodation request is not automatically discrimination.
Employers are required to accommodate to the point of undue hardship, not to provide your preferred solution. A denial can be lawful if the employer genuinely investigated alternatives and had legitimate, documented reasons for its decision. Context matters when comparing your case to other decisions. Cases involving large employers with existing remote infrastructure may not assist you if your employer is a small operation facing a sudden crisis. Get advice on whether your precedents actually fit your facts. Misuse of employer systems can surface later, with serious consequences. Conduct involving confidential records, data, or systems can be discovered well after the fact, and can retroactively affect your entitlement to notice, even if it was not the stated reason for your termination. A prior warning about workplace conduct should be taken seriously. If you have been formally warned about specific conduct, continuing it, even years later, significantly increases the risk that a later dismissal will be upheld as being for just cause. |
Why This Decision Matters
As pandemic-era remote work disputes continue to work their way through Ontario courts, Birnbaum is a helpful reminder that the duty to accommodate is not a one-size-fits-all obligation. What a large, well-resourced employer must do to accommodate a remote work request is not the standard a small clinic or business is held to, particularly in the early, chaotic weeks of a public emergency. The decision is equally important for its treatment of after-acquired cause, confirming that long-tenured, otherwise unblemished service does not immunize an employee from a for-cause finding where confidentiality obligations, central to the employer’s regulatory obligations, are knowingly and repeatedly breached.
| Talk to an employment lawyer
Rozek & Co advises both employers and employees on accommodation obligations, workplace investigations, and just cause terminations across Ontario. If you are navigating an accommodation request, or facing a dispute over cause, our employment lawyers can help you assess your options. |
