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Alberta Courts Recognize the Tort of Intrusion upon Seclusion
In BD v Germain, 2026 ABLB 590 (“BD v Germain”), the Alberta Court of King’s Bench formally recognized the tort of intrusion upon seclusion in Alberta for the first time; enshrining in law a cause of action that protects individuals from intentional invasions of their privacy, whether physical or non-physical.
While the tort originated in Ontario through Jones v Tsige, 2012 ONCA 32, the Alberta Court adopted a slightly different test for determining when a privacy invasion will give rise to liability.
The Facts
In BD v Germain, Mr. Germain used his work as a plumber, gas fitter, and HVAC technician to gain access to private spaces so that he could secretly record people using washrooms.
He was ultimately discovered hiding in a closet in a government office washroom while making voyeuristic recordings. After reviewing his phone and laptop, the Edmonton Police Service found that he had secretly recorded 117 individuals over a six-year period. Mr. Germain was later sentenced to a 15-month conditional sentence order and two years of probation. Although subject to appeal, this sentence was upheld by the Alberta Court of Appeal in R v Germain, 2022 ABCA 257.
The plaintiff learned that she had been recorded while using the washroom at her workplace and viewed the footage herself. She described feeling sick, exposed, and humiliated. Shortly afterward, she was diagnosed with post-traumatic stress disorder, an acute stress reaction, and anxiety.
Recognition of the Tort
Before recognizing a new tort, courts must consider whether doing so is necessary and appropriate. In Nevsun Resources Ltd v Araya, 2020 SCC 5, the Supreme Court of Canada explained that courts will generally not recognize a new tort where:
- existing legal remedies already adequately address the harm;
- the proposed tort does not address a genuine wrong committed by one person against another; or
- recognizing the tort would create an indeterminate or substantial change to the law.
The Court considered whether existing Alberta law already provided an adequate remedy for the plaintiff’s harm. It found that it did not.
For example, because the recordings had not been distributed, the plaintiff could not rely on Alberta’s Protecting Victims of Non-Consensual Distribution of Intimate Images Act, SA 2017, c P-26.9. The Court also considered other potential tortious causes of action, including trespass, breach of confidence, and intentional infliction of mental suffering. However, it concluded that these torts did not adequately address the specific invasion of privacy that occurred in this case. The Court also noted that requiring plaintiffs to rely on existing torts could leave some victims without a remedy. Those causes of action contain additional legal elements and evidentiary requirements that may be difficult to prove, even where a person has clearly suffered a serious invasion of privacy.
The Court acknowledged the clear wrong visited upon BD by Mr. Germain. They note that while Mr. Germain had faced criminal consequences for his conduct, criminal proceedings serve a different purpose than civil claims. Because no existing tort adequately addressed the plaintiff’s loss of privacy, the Court recognized that it would reflect a deficiency in the law to send the Plaintiff away without a legal remedy.
The Court concluded that recognizing the tort of intrusion upon seclusion would not dramatically change Alberta law but would instead represent a modest and necessary development of the common law to address increasingly serious privacy concerns arising from modern technology.
The Test
As a result of the case of BD v Germain, the tort of intrusion upon seclusion has been recognized in Alberta. To establish the tort of intrusion upon seclusion in Alberta, a plaintiff must prove:
- The defendant’s conduct was intentional or reckless;
- The defendant must have invaded, without lawful jurisdiction, the plaintiff’s private affairs, or concerns; and
- A reasonable person, in the position of the plaintiff, would regard the invasion as highly offensive, causing distress, humiliation, and anguish.
Notably, the Alberta test differs from the Ontario formulation by asking how a reasonable person in the plaintiff’s position would regard the invasion, thereby incorporating the plaintiff’s specific circumstances into the analysis.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
