The new tort of intrusion upon seclusion provides a remedy for Albertans who have experienced a serious invasion of privacy.
In the recent case of BD v Germain, 2026 ABKB 590, the Court of King’s Bench of Alberta recognized a new privacy tort in Alberta’s common (judge-made) law: the tort of intrusion upon seclusion.
Background
An employee learned someone had secretly recorded her while she used a workplace bathroom. She visited a police station to view the recording. The recording showed the employee undressing and using the toilet. Her face and genitals were exposed. The police told the employee that Douglas Germain, a tradesperson, was responsible for the recording.
Germain was criminally charged and pled guilty to voyeurism. He received a 15-month conditional sentence followed by two years of probation.
Germain’s actions caused the employee serious psychological harm. She described feeling sick, exposed, and humiliated after watching the recording. She took a leave of absence from work and was diagnosed with post-traumatic stress disorder, acute reaction to stress, and anxiety. Her concentration was affected and she experienced sleeplessness, anxiety flare-ups, avoidance behaviours, and nightmares. She went to therapy sessions and took medication for her symptoms.
Civil lawsuit
The employee sued Germain seeking financial compensation (damages) for her injuries. When her case came before the Court, she continued to experience anxiety, humiliation, stress, depression, sleeplessness, nightmares, difficulty concentrating, and fear of being filmed or watched. She was also fearful of using public bathrooms, encountering Germain, and having tradespeople come to her work or home.
No adequate existing tort
There was no existing privacy tort (civil wrong) in Alberta that provided an adequate basis for the employee’s claim. The privacy tort found in Alberta’s Protecting Victims of Non-Consensual Distribution of Intimate Images Act did not apply, because there was no evidence that Germain had published or distributed the recording. And none of the existing common law (judge-made) torts in Alberta provided an adequate remedy for the situation. The employee asked the Court to recognize a new privacy tort in Alberta – the tort of intrusion upon seclusion. This tort was first recognized by the Court of Appeal for Ontario in Jones v Tsige, 2012 ONCA 312.
New privacy tort recognized
The Court granted the employee’s request and recognized the tort of intrusion upon seclusion in Alberta. The Court held:
The recognition of the tort of Intrusion upon Seclusion is an appropriate step to take. This represents an incremental step in the common law and is a necessary tool for Courts to have at their disposal. Courts in Ontario have recognized this tort for over a decade. It is time for Alberta to recognize it as well.
To establish Alberta’s new tort of intrusion upon seclusion, a plaintiff (person suing) must prove that:
- the defendant’s conduct was intentional or reckless;
- the defendant invaded the plaintiff’s private affairs or concerns without lawful jurisdiction (authority); and
- a reasonable person, in the plaintiff’s position, would view the invasion as highly offensive, causing distress, humiliation, and anguish.
The court will decide on the damages the employee is entitled to recover from Germain in a later hearing.
What the future holds
The recognition of the tort of intrusion upon seclusion provides Albertans who experience serious invasions of their privacy with a new remedy, even where the wrongdoer did not publish or distribute private information or images. As noted by the Court in BD v Germain, this is important given the increasing pace of technological change and the increasing invasiveness of the “changes that affect individuals’ rights to privacy”.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Jennifer Taylor
