From Ontario To Alberta: The Tort Of Intrusion Upon Seclusion Sweeps Across Canada

In BD v. Germain,¹ the Court of King’s Bench of Alberta (“ABKB”) recognized the common law tort of intrusion upon seclusion for the first time in Alberta. In doing so, it joined Ontario, which has recognized the tort since the seminal decision of the Court of Appeal for Ontario (“ONCA”) in Jones v. Tsige.²

This bulletin summarizes the ABKB’s reasoning and discusses Germain’s potential impact on the recognition of common-law torts elsewhere in Canada.

A Serious Invasion of Privacy

The defendant, Germain, was a journeyman plumber working for a gas fitting and HVAC company. He used this role to install recording devices in the washrooms of government buildings, hotels, and stores, secretly recording 117 victims over a period of six years.³ The plaintiff was one of these unfortunate victims. In a related criminal trial, the defendant pled guilty to voyeurism contrary to s. 162(1)(a) of the Criminal Code and was sentenced to a 15-month conditional sentence order and two years of probation.⁴

In an earlier proceeding, Justice Aloneissi of the ABKB granted judgment to the plaintiff for intrusion upon seclusion and intentional infliction of mental suffering. However, he also split the proceedings, ordering two special chambers hearings to determine (1) whether Alberta courts should recognize intrusion upon seclusion more generally, and (2) the quantum of the plaintiff’s damages.⁵ Notably, counsel for the defendant made no submissions on the issue of whether intrusion upon seclusion should be recognized, and therefore the issue was unopposed.⁶

The Alberta and Ontario Tests for Intrusion Upon Seclusion Differ Slightly

The ABKB based its recognition of intrusion upon seclusion on several factors, including a clear societal interest in protecting the right to privacy, which is enshrined in s. 8 of the Canadian Charter of Rights and Freedoms; the absence of adequate alternative remedies; and the fact that the tort addressed a clear wrong against the plaintiff.⁷ Moreover, the ABKB held that recognizing the tort would not bring “substantial change or indeterminate change” to Alberta’s legal system, noting that Ontario courts have recognized intrusion upon seclusion for more than a decade.⁸

To prove intrusion upon seclusion, plaintiffs in Alberta must establish (on a balance of probabilities) that:

“(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” (emphasis added).⁹

Notably, the third prong of this test differs slightly from the ONCA’s formulation of intrusion upon seclusion, which asks simply whether a reasonable person (rather than a reasonable person in the plaintiff’s position) would regard the invasion as highly offensive. In adopting the plaintiff-centred formulation, the ABKB followed the House of Lords’ decision in Campbell v. MGN Ltd¹⁰ as well as its own decision in ES v Shillington, where the Court of Queen’s Bench of Alberta (as it was then known) became the first court in Alberta to recognize the tort of public disclosure of private facts.¹¹

Intrusion Upon Seclusion has Limited but Growing Recognition

With this decision, Alberta joins Ontario as one of the few Canadian common law jurisdictions to clearly recognize intrusion upon seclusion. Recognition elsewhere remains unsettled. Nova Scotia courts have referred to the tort’s elements in several decisions, including at the certification stage of proposed class actions, but have stopped short of formally recognizing it, repeatedly leaving the question “for another day.”¹²

In Newfoundland and Labrador, a trial-level court recognized the tort in 2022, but the Court of Appeal overturned that finding in 2025, when it held that the trial judge should have avoided the question and left recognition open for a future proceeding.¹³ As that Court of Appeal decision also notes, no other province without a statutory privacy tort has definitively recognized intrusion upon seclusion.¹⁴

Four provinces (British Columbia, Saskatchewan, Manitoba, and Newfoundland and Labrador) also have similar privacy torts established by statute, which predate Jones v. Tsige.¹⁵ Provinces with statutory privacy torts are unlikely to recognize separate common law privacy torts, as there is no apparent gap to be filled by a common law tort.¹⁶

There are still several provinces that have not recognized intrusion upon seclusion and have no corresponding statutory privacy torts. The Germain decision may provide an impetus for other provinces and territories to recognize intrusion upon seclusion as well, if the right set of facts comes before the courts. In the meantime, we expect that plaintiffs in national class action lawsuits will continue to plead intrusion upon seclusion to fill the gap in these provinces, despite the lack of formal recognition, as McMillan discussed in its coverage of a class action against Hyp3R.

Takeaways

The ABKB’s recognition of intrusion upon seclusion in Alberta signals the continued expansion of common law privacy torts across Canada, and organizations should be prepared for the possibility that courts in remaining provinces and territories may follow suit.

For private sector organizations, the decision is also a reminder that trusted personnel in your work environments can cause significant harm by misusing their position. As McMillan has previously discussed, organizations can be held vicariously liable under the common law for the improper actions of their employees, underscoring the value of access controls, training, and oversight for anyone with access to private spaces or information. While there was no apparent claim made against the defendant’s employer in this case, there is precedent for these kinds of actions in certain circumstances.¹⁷

Footnotes

1. BD v. Germain, 2026 ABKB 590. [Germain.

2. Jones v. Tsige, 2012 ONCA 32. This is a decision McMillan covered at the time.

3. R v Germain, 2022 ABCA 257 (CanLII), paras 3-8.

4. Germain, para 10.

5. Germain, para 2.

6. Germain, para 4.

7. Germain, paras 22, 27-28 & 34.

8. Germain, para 37, 40.

9. Germain, para 42.

10. Campbell v. MGN Ltd [2004. UKHL 22.

11. Germain, para 43; ES v Shillington, 2021 ABQB 739, para 63.

12. Trout Point Lodge Ltd. v. Handshoe, 2012 NSSC 245, para 80 (declining to award damages for intrusion upon seclusion and leaving “the issue of a cause of action for intrusion on seclusion for another day in another proceeding”); Doucette v. Nova Scotia, 2016 NSSC 25, paras 172 & 175 (same approach), aff’d Marson v. Nova Scotia, 2017 NSCA 17; Hemeon v. South West Nova District Health Authority, 2015 NSSC 287, paras 21-26 (noting the tort “has not” been “formal[ly.” recognized in Nova Scotia, though it has been referred to in the province’s jurisprudence); Murray v. East Coast Forensic Hospital, 2015 NSSC 61, paras 36-40 (certifying the tort as a common issue for a proposed class action, without deciding whether it exists in Nova Scotia: “…the tort of intrusion upon seclusion is novel. However, s. 7(1) of the CPA does not exclude novel claims…”), aff’d Capital District Health Authority v. Murray, 2017 NSCA 28, para 65 (holding it was “not plain and obvious” the tort claim would fail); see also Nova Scotia (Attorney General) v. Murray, 2017 NSCA 29, para 19 (companion appeal, noting the Attorney General’s position that the tort “in Nova Scotia, is in its infancy, and is not defined to a point that we could properly certify it within a class action”).

13. Power v. Mount Pearl (City), 2022 NLSC 129, para 26. However, the Court of Appeal of Newfoundland and Labrador declined to affirm this element of the trial court’s decision in Mount Pearl (City) v. Power, 2025 NLCA 16, paras 64 & 70.

14. Mount Pearl (City) v. Power, 2025 NLCA 16, para 66.

15. British Columbia’s Privacy Act, s. 1; The Privacy Act of Saskatchewan, s. 2; The Privacy Actof Manitoba, s. 2; and Newfoundland & Labrador’s Privacy Act.

16. See, for example, Ari v. Insurance Corporation of British Columbia, 2015 BCCA 468, para 9; and Mount Pearl (City) v. Power, 2025 NLCA 16, para 66.

17. See Ari v. Insurance Corporation of British Columbia, 2022 BCSC 1475 (employer found vicariously liable for an employee’s breach of the statutory Privacy Act (B.C.), not the common law tort of intrusion upon seclusion).