In a significant development for Canadian privacy law, the Court of King’s Bench of Alberta (the “Court”) has recognized the tort of intrusion upon seclusion in BD v Germain (“Germain”).[1] Ontario recognized the tort more than a decade ago in Jones v Tsige (“Jones”), and Alberta has now done the same.[2]
The case arose from particularly troubling facts. Over a six-year period, the defendant, who was a plumber, gas fitter, and HVAC technician, exploited the access afforded by his work to secretly record individuals in private washrooms. Police ultimately discovered 117 voyeuristic recordings, including recordings of at least two minors.[3] The plaintiff, BD, was secretly filmed while using a workplace bathroom. After viewing the recording, she suffered significant psychological harm, including post-traumatic stress disorder, anxiety, depression, sleep disturbances, and ongoing fear of using public washrooms.[4] The defendant later pleaded guilty to voyeurism under section 162(1)(a) of the Criminal Code, RSC 1985, c C-46.[5]
The Court’s Analysis of Whether to Recognize Intrusion upon Seclusion
At issue in Germain was whether Alberta should recognize the tort of intrusion upon seclusion.[6] Applying the framework articulated by the Supreme Court of Canada in Nevsun Resources Ltd v Araya, the Court considered whether the proposed tort must “reflect a wrong, be necessary to address that wrong, and be an appropriate subject of judicial consideration,”[7] BD argued that each requirement was met.[8]
The Court agreed. First, it concluded that Alberta’s existing statutory privacy protections did not provide a remedy for privacy breaches committed by one individual against another.[9] The Court noted that Alberta’s privacy legislation regulates the collection, use, and disclosure of information by organizations and public bodies, while the Protecting Victims of Non-Consensual Distribution of Intimate Images Act, SA 2017, c P-26.9, was inapplicable because the recordings were never distributed.[10] The Court also found that traditional torts such as trespass, breach of confidence, and intentional infliction of mental suffering were not adequate substitutes in circumstances like these. Therefore, there were no adequate alternative remedies to address BD’s claim.[11]
Second, the Court held that the proposed tort clearly responded to a genuine wrong. Drawing on the Court of Appeal for Ontario’s reasoning in Jones, Justice Lew observed that the plaintiff’s experience “cr[ied] out for a remedy” and that the law would be deficient if individuals in BD’s position were left without a tort claim.[12]
Third, the Court concluded that recognizing the tort would not create an indeterminate or substantial change to the legal system. Rather, it represented an incremental development of the common law consistent with the increasing importance of privacy in an era of rapid technological change. The Court noted that Ontario courts have recognized the tort for more than a decade and observed that modern technologies continue to create new opportunities for serious privacy intrusions.[13]
Alberta’s Test for Intrusion Upon Seclusion
Having determined that recognition was warranted, the Court adopted the following test for intrusion upon seclusion in Alberta:
1. The defendant’s conduct must be intentional or reckless;
2. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs, or concerns; and
3. A reasonable person, in the position of the plaintiff, would regard the invasion as highly offensive, causing distress, humiliation, and anguish.[14]
A Departure from Ontario’s Jones v Tsige
The third element of the test differs slightly from the Ontario test established in Jones. Rather than asking whether a “reasonable person would regard the invasion as highly offensive,” the Court asks whether a “reasonable person, in the position of the plaintiff” would do so.[15] The difference reflects Justice Lew’s opinion that “the reasonable person to be considered is the person affected by the publication, rather than the viewer of the publication”.[16]
Conclusion
The decision represents an important expansion of privacy protection. By following Ontario in recognizing intrusion upon seclusion as a tort, Alberta has confirmed that serious invasions of privacy can attract civil liability. Whether Alberta courts will also adopt Ontario’s approach to damages for intrusion upon seclusion remains to be determined, as the quantum of damages was left for a subsequent hearing.[17]
The information and comments herein are for the general information of the reader and are not intended as advice or opinion to be relied upon in relation to any particular circumstances. For particular application of the law to specific situations, the reader should seek professional advice.
[1] 2026 ABKB 590 [Germain].
[2] Jones v Tsige, 2012 ONCA 32 [Jones].
[3] Ibid at paras 3-9.
[4] Ibid at paras 5-7,11-12.
[5] Ibid at para 10.
[6] Ibid at para 13.
[7] 2020 SCC 5 at para 237; Germain at para 14.
[8] Germain at para 20.
[9] Ibid at paras 21, 28-29.
[10] Ibid at para 30.
[11] Ibid at paras 31-33.
[12] Ibid at paras 34-36.
[13] Ibid at paras 37-40.
[14] Ibid at para 42.
[15] Jones at para 71; Germain at para 43.
[16] Germain at para 43.
[17] Ibid at para 2.
