In BD v Germain, 2026 ABKB 590 (Lew, J) the Alberta Court of King’s Bench officially recognized the tort of Intrusion Upon Seclusion as being a valid tort claim in Alberta.
This case is important because the tort of Intrusion Upon Seclusion has not previously been officially recognized to exist in Alberta.
Facts
The following were the pertinent facts summarized by the ABKB:
- BD was employed with the Government of Alberta. She was informed by her employer that she had been secretly recorded while using the bathroom at work. The video showed her undressing, using the toilet, and wiping herself
- The person alleged to have recorded it plead guilty to voyeurism and was criminally sentenced
- BD felt sick, exposed and humiliated. She took a leave of absence and was diagnosed with PTSD and other illnesses
- The Court of King’s Bench on this matter had previously granted judgment to BD for intrusion upon seclusion and intentional infliction of mental suffering, but directed the parties to conduct a special application to determine if the tort of intrusion upon seclusion was valid in Alberta
- This following is a summary of the special application that was heard by Justice EC Lew
Analysis / Conclusion
The Court noted that Intrusion Upon Seclusion was recognized as a new tort in Ontario in the decision Jones v Tsige, 2012 ONCA 32.
Previous Alberta decisions have found that there either is no tort of privacy or intrusion upon seclusion, or that the facts in those cases did not support a breach in any event.
However, the Court found that it was now appropriate to recognize this new tort in Alberta because no alternative action was sufficient to address the wrongs in this case or potential similar cases. The pertinent reasoning was as follows:
[31] BD argues the torts currently recognized in Alberta are not adequate remedies for this situation. Counsel for BD identified the torts of trespass, breach of confidence, and intentional infliction of mental distress. I agree with BD that none of these torts are suitable alternative remedies. Trespass generally relates to a direct interference with a person’s land, personal property, or physical interference with a person’s body or liberty […] Breach of confidence requires private information being communicated in confidence and then misused by the party who receives the information […]. Here, the information was not communicated but was rather secretly gathered.
[32] Finally, while BD herself received judgment for intentional infliction of mental suffering, BD fairly notes that the Defendant took no position on this judgment. It is possible that a plaintiff in circumstances like BD could have trouble meeting the elements of the test for intentional infliction of mental suffering, which requires the plaintiff to show flagrant and outrageous conduct by a defendant, calculated to produce harm, and resulting in visible and provable illness (ES v Shillington, 2021 ABQB 739 at para 47 [Shillington]).
[33] In Shillington, the Court noted, with respect to the third element of this test, that provable illness “may require proof of something beyond the anxiety, stress and humiliation a victim may suffer upon discovery of the public sharing of their intimate images” (at para 48). Similarly, in a situation such as this it is certainly possible that a plaintiff may suffer great injury that does not rise to the level of “provable illness” from the discovery of surreptitious filming of the plaintiff in deeply vulnerable and humiliating circumstances. It may also have been a challenge for BD to prove that the conduct was calculated to produce harm, where Mr. Germain appeared not to expect BD to ever learn that she had been surreptitiously filmed.
[35] I agree with Sharpe JA, writing for the Court in Jones, when he notes that the facts of the case before him, “cry out for a remedy.” […]
[36] Similarly here, the wrongs perpetrated against BD cry out for a remedy. BD suffered great indignity and embarrassment as the result of doing something as innocuous as using the bathroom at her workplace.
The Court went on to articulate the test for intrusion upon seclusion in Alberta, as follows:
[42] In order for a plaintiff to establish the tort of Intrusion upon Seclusion they must prove the following on a balance of probabilities:
a. The defendant’s conduct was intentional or reckless;
b. The defendant must have invaded, without lawful jurisdiction, the plaintiff’s private affairs, or concerns; and
c. A reasonable person, in the position of the plaintiff, would regard the invasion as highly offensive, causing distress, humiliation, and anguish.
The Court pointed out that this formulation is slightly different than the tort recognized in Ontario. Where in Ontario, the third branch of the test is confined to a “reasonable person”, the Alberta test is easier to meet because it refers to a reasonable person in the position of the plaintiff.
My Take
There are historically many situations involving breach of privacy with little meaningful redress in Alberta. The BD v Germain decision could potentially change this.
We’ll all have to wait patiently to see if this decision gets appealed to the Alberta Court of Appeal.
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