Alberta Recognizes The Tort Of Intrusion Upon Seclusion In BD v Germain

The Alberta Court of King’s Bench has now expressly recognized the tort of intrusion upon seclusion in Alberta in BD v Germain, 2026 ABKB 590 (“BD”). The decision adopts a common law privacy tort that Ontario has recognized for more than a decade, while modifying the third element of the test to ask whether a reasonable person in the plaintiff’s position would regard the invasion as highly offensive.

Background

The case arose from deeply intrusive facts. The plaintiff, a Government of Alberta employee, learned that she had been secretly recorded in a workplace bathroom. Police later discovered that the defendant had made numerous voyeuristic recordings over a period of years, including recordings of multiple victims. The defendant ultimately pled guilty to voyeurism under the Criminal Code.

The plaintiff suffered significant psychological harm, including humiliation, time away from work, PTSD-related symptoms, anxiety, insomnia, and ongoing fear associated with bathrooms and tradespeople.

A prior ruling had already granted judgment to the plaintiff for intrusion upon seclusion and intentional infliction of mental suffering, but the Court directed a further hearing on the broader question of whether intrusion upon seclusion should be formally recognized in Alberta. That was the issue before the Court.

Ontario had already recognized the tort

This was not a concept being developed from scratch. In Jones v. Tsige, 2012 ONCA 32 (“Jones”), the Ontario Court of Appeal recognized the common law tort of intrusion upon seclusion in 2012. The Ontario test requires:

• intentional or reckless conduct;
• an invasion, without lawful justification, of the plaintiff’s private affairs or concerns; and
• an invasion that a reasonable person would regard as highly offensive, causing distress, humiliation, or anguish.

Importantly, Jones emphasized that the tort is intended to be narrow. It applies only to deliberate and significant invasions of personal privacy, and is not meant to open the floodgates to routine privacy complaints. The Court also made clear that claims by people who are merely unusually sensitive about privacy are excluded, and that the tort is aimed at serious intrusions into matters such as financial records, health information, sexual practices, employment matters, diaries, and private correspondence.

The Ontario Court also held that proof of economic loss is not required, although damages will ordinarily be modest given the intangible nature of the interest protected.

Why did Alberta recognize the tort of intrusion upon seclusion?

The Court approached the issue through the framework set out by the Supreme Court of Canada in Nevsun Resources Ltd v Araya, 2020 SCC 5. In simple terms, the question was whether existing remedies were enough, whether this proposed tort addressed a real wrong, and whether recognizing it would create too large or uncertain a change in the law. The Court also noted that Canadian courts will rarely recognize a new tort.

Here, the Court concluded that intrusion upon seclusion should be recognized in Alberta for three main reasons:

1. First, there were no adequate alternative remedies. The Court reviewed Alberta privacy legislation and concluded that those statutory schemes did not provide a remedy for an individual against another individual in this kind of situation. It also held that other torts, such as trespass, breach of confidence, and intentional infliction of mental suffering, were not adequate substitutes.
2. Second, the proposed tort clearly reflected and addressed a wrong. The Court adopted the same general view expressed in Jones that facts of this nature “cry out for a remedy.” Criminal law served a different purpose, and did not eliminate the need for a civil remedy directed at the plaintiff’s personal harm.
3. Third, recognizing the tort would not create an indeterminate or substantial change in Alberta law. Rather, the Court characterized it as an incremental step consistent with the common law’s ability to respond to changing social and technological realities.

What is the test for intrusion upon seclusion in Alberta?

The Court held that, to establish intrusion upon seclusion in Alberta, a plaintiff must prove on a balance of probabilities that:

• the defendant’s conduct was intentional or reckless;
• the defendant 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.

How Alberta’s test differs from Ontario’s

The most interesting doctrinal point in the case may be the wording of the third element. Ontario’s formulation asks whether a reasonable person would regard the invasion as highly offensive. Alberta’s formulation asks whether a reasonable person, in the position of the plaintiff, would do so.

The Court expressly acknowledged that difference and said it preferred an approach focused on the perspective of the affected person, rather than an outside viewer. That is not necessarily a dramatic departure, but it may matter at the margins. At a minimum, it suggests that Alberta’s approach may place somewhat more emphasis on the plaintiff’s circumstances while still maintaining an objective standard.

Key takeaways

• Alberta now recognizes intrusion upon seclusion as a common law tort in an appropriate case.
• Ontario recognized the tort first in Jones, and Alberta’s new test closely tracks that earlier framework.
• BD crossed the line because the facts involved an intentional and deeply invasive privacy violation for which existing remedies were not adequate.
• The Alberta test differs slightly from Ontario’s by asking whether a reasonable person in the position of the plaintiff would find the invasion highly offensive.
• Technology continues to matter, and the decision reflects the courts’ willingness to adapt the common law to modern privacy harms.