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...
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