Case In Point
Past Conduct, Present Cause: Ontario Court Upholds After-Acquired Cause in Birnbaum v. Dr. Chan
Date: June 10, 2026
What happens when an employer discovers serious misconduct only after terminating an employee without cause? In Birnbaum v. Dr. Chan, the Ontario Superior Court confirmed that employees are not insulated from the consequences of serious misconduct committed before termination simply because it was discovered afterwards.
Background
The employee, a medical secretary with approximately 19 years of service, was initially terminated without cause after the clinic experienced a significant reduction in workload during the COVID-19 pandemic. The clinic offered the employee 12 months of salary continuation.
After termination, the employee requested access to a patient chart she had created for herself in the clinic’s electronic medical records system (ERMS). That request led to the discovery that, despite training, written acknowledgements, system warnings, and prior discipline, the employee had continued to seriously misuse the ERMS. Contrary to the clinic’s policies, the employee had created and modified patient records for herself and a member of her family without authorization. She also misrepresented the physician as part of her “circle of care”, and improperly used the ERMS to request personal medical records.
The clinic withdrew its salary continuation offer, asserted that the termination was instead for just cause, and paid only the minimum statutory termination and severance entitlements. In response, the employee advanced a wrongful dismissal claim.
The Court’s Decision
The Court accepted the clinic’s defence, finding there was “after-acquired cause” for the dismissal. As a result of the training, prior warnings, and system alerts, the Court found that the employee knew or ought to have known the seriousness of her misconduct. The Court emphasized that confidentiality and proper use of systems were fundamental to the role, and the employee’s conduct “struck at the heart” of the employment relationship.
Key Takeaways
Serious Misconduct Found Later Can Support Just Cause
Information uncovered after dismissal can still be highly relevant for employers, particularly where it involves dishonesty, confidentiality breaches, misuse of systems, or other conduct that fundamentally undermines trust in the role. Even where the misconduct comes to light only after termination, employers may still be able to rely on it to support a just cause defence.
Clear Documentation is Critical
In addition to audit logs, the clinic’s position was well supported by the steps it had taken during employment, including confidentiality training with signed documentation, the implementation of system warnings, and a prior written warning. Documents created during employment (including training acknowledgments, documented warnings, and other similar records) can become critical evidence. Cause may be “after-acquired” following a termination, but the foundation for relying on it needs to be built well before.
If you have any questions or require more information, please contact your Hicks Morley lawyer.
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