A Win for Privacy: Alberta’s Recognition of Intrusion Upon Seclusion

In August 2026, the Alberta Court of King’s Bench published BD v Germain, formally recognizing the tort of intrusion upon seclusion. The decision creates a new avenue for Albertans to seek remedies when their privacy is invaded.

Background

The case arose from conduct discovered by the Edmonton Police Service in 2020. Police found that a man had made more than 100 voyeuristic video recordings over a six-year period involving 117 victims.

The plaintiff learned that she had been secretly recorded while using a bathroom at her workplace. As a result of the incident, she took a leave of absence and experienced significant psychological harm, including post-traumatic stress disorder, anxiety, sleep disturbances, humiliation, fear of being watched or filmed, and other related symptoms.

The plaintiff asked the Court to recognize the tort of intrusion upon seclusion in Alberta. The tort was first recognized in Ontario by the Court of Appeal in Jones v Tsige. The Alberta Court of King's Bench therefore considered whether Alberta's common law should similarly evolve to recognize this cause of action.

Requirements for Recognizing a New Tort

The Court reviewed the framework established by the Supreme Court of Canada for recognizing new torts. Specifically, a court must be satisfied that:

1. There must be no adequate alternative remedies.
2. The proposed tort must reflect and address a wrong.
3. The proposed tort must not bring indeterminate or substantial change to the legal system.

Although Alberta courts have previously recognized related causes of action, including the tort of intentional infliction of mental suffering and, in ES v Shillington, a common-law remedy for the non-consensual distribution of intimate images, the Court found that these causes of action did not adequately address the harm suffered by the plaintiff. The Court further concluded that recognizing intrusion upon seclusion would not significantly alter Alberta law. Rather, it would fill an existing gap by providing a remedy for serious invasions of privacy.

Justice Lew emphasized the importance of privacy rights in Canadian law. The Court noted that privacy interests receive constitutional protection through the Canadian Charter of Rights and Freedoms, and that voyeurism is a criminal offence under the Criminal Code. While these legal protections reflect the significant societal value placed on privacy, they do not provide a direct common-law remedy in disputes between private individuals. The Court therefore found that Alberta's common law should develop in a manner consistent with those broader legal principles.

The New Tort of Intrusion Upon Seclusion

Justice Lew adopted the following test for intrusion upon seclusion. A plaintiff must establish, on a balance of probabilities, that:

1. The defendant’s conduct was intentional or reckless.
2. The defendant must have invaded, without lawful jurisdiction, the plaintiff’s private affairs, or concerns.
3. A reasonable person, in the position of the plaintiff, would regard the invasion as highly offensive, causing distress, humiliation, and anguish.

Notably, Alberta's formulation of the tort is slightly broader than the version recognized in Ontario. The third element expressly requires the Court to consider the perspective of a reasonable person in the position of the plaintiff, introducing a more contextual analysis of whether the conduct would be considered highly offensive.

Although future cases will determine the scope of the tort in Alberta, Ontario jurisprudence suggests that it may apply to the improper access or disclosure of highly personal information, including financial records, health information, sexual practices or orientation, employment information, and private communications.

Organizations should remain mindful of the sensitive information they collect, maintain, and access. Employers and businesses should ensure that appropriate safeguards are in place to protect personal information from unauthorized access or misuse. Depending on the circumstances, organizations may also face claims of vicarious liability where employees intentionally or recklessly invade another person's privacy.

Key Takeaway

BD v Germain represents a significant development in Alberta privacy law. By recognizing the tort of intrusion upon seclusion, the Court has provided Albertans with a new civil remedy for serious invasions of privacy and aligned Alberta more closely with developments in other Canadian jurisdictions.

For guidance on privacy compliance, data management, workplace confidentiality, and information governance, contact Hasti Pourriahi,  Richard Stobbe or any member of our Privacy + Data Management Team.

Link to decision: BD v Germain, 2026 ABKB 590