A New Privacy Tort in Alberta: Court Recognizes Intrusion Upon Seclusion

Alberta privacy law has taken a significant step forward with a recent decision from the Court of King’s Bench. In BD v. Germain, the Court formally recognized the common law tort of intrusion upon seclusion in Alberta for the first time.

The decision adds another potential civil remedy for serious invasions of personal privacy. Alberta courts had previously considered whether such a tort existed, but the law remained unsettled. The Court has now confirmed that intrusion upon seclusion forms part of Alberta common law and has set out the test plaintiffs must meet when advancing such a claim.

Secret Recording Leads to a Privacy Claim

The plaintiff was an employee of the Government of Alberta. In April 2020, her employer informed her that she had been secretly recorded while using a workplace bathroom. Police had identified her after obtaining a screenshot showing her face from one of the recordings.

Police ultimately determined that the defendant had used his work in plumbing, gas fitting, and HVAC to gain access to private spaces and secretly record individuals. Investigators discovered 111 voyeuristic recordings on his phone, with further recordings found on laptops. The Court noted that there were 117 victims in total, including at least two individuals under the age of 18. There was no evidence that the recordings had been publicly distributed.

The defendant later pleaded guilty to voyeurism under the Criminal Code. The plaintiff subsequently pursued civil claims, including intrusion upon seclusion and intentional infliction of mental suffering. A previous decision granted judgment on those claims but directed a further hearing on whether intrusion upon seclusion should be recognized generally as a tort in Alberta.

The Harm Caused by the Privacy Invasion

The Court described substantial consequences for the plaintiff after she learned about and viewed the recording. She reported feeling exposed, humiliated, and physically ill and was diagnosed with PTSD. She took a leave of absence from work and experienced anxiety, sleep problems, nightmares, difficulty concentrating, and avoidance behaviours.

Those circumstances placed the broader issue squarely before the Court: whether Alberta common law should recognize a civil cause of action specifically directed at highly offensive invasions of personal privacy.

When Can a Court Recognize a New Tort?

The Court relied on guidance from the Supreme Court of Canada concerning the recognition of new nominee torts. The Supreme Court has identified circumstances in which courts should not create a new tort, including where adequate alternative remedies already exist, where the proposed tort does not address a recognizable wrong between individuals, or where recognition would cause an indeterminate or substantial change to the legal system.

Accordingly, the Court considered whether intrusion upon seclusion addressed a genuine wrong, whether existing legal remedies were adequate, and whether recognizing the tort would constitute an appropriate incremental development of the common law. The Court concluded that those requirements were satisfied.

Privacy as an Important Legal Interest

In reaching its conclusion, the Court reviewed the importance of privacy within Canadian law. It noted that privacy receives constitutional protection through section 8 of the Canadian Charter of Rights and Freedoms, although the Charter does not directly govern private disputes between individuals.

The Court observed that the common law may nevertheless develop consistently with Charter values. It also referred to the longstanding history of privacy interests in the common law and to the criminal prohibition against voyeurism, which protects individuals against harms involving personal privacy and sexual integrity.

The Court emphasized that privacy supports values including dignity, autonomy, and personal integrity. It concluded that there is clear societal value in protecting individual privacy.

Existing Alberta Privacy Laws Did Not Provide an Adequate Remedy

A major part of the Court’s analysis concerned whether existing statutes already addressed the type of conduct involved in the case.

Alberta has several privacy-related statutes, including the Personal Information Protection Act, the Protection of Privacy Act, and the Access to Information Act. However, the Court found that these statutes did not provide a remedy for an individual whose privacy had been invaded by another individual in circumstances such as those before the Court.

Alberta also has legislation addressing the non-consensual distribution of intimate images. That legislation did not apply because there was no evidence that the defendant had distributed the recordings. The privacy invasion arose from the secret creation of the recordings themselves.

Other Common Law Claims Were Also Insufficient

The Court considered whether established causes of action such as trespass, breach of confidence, or intentional infliction of mental suffering could provide an adequate alternative remedy.

Trespass generally addresses interference with land, property, a person’s body, or liberty. Breach of confidence generally requires confidential information to have been communicated and subsequently misused. In this case, the information was not voluntarily communicated to the defendant. It was secretly obtained.

Intentional infliction of mental suffering also contains requirements that may not always be satisfied in privacy cases. The Court noted that a person could suffer serious anxiety, humiliation, or distress from surreptitious recording without necessarily establishing a provable illness. It may also be difficult to establish that secret conduct was calculated to cause harm when the wrongdoer never expected the victim to discover it.

A Wrong That Called for a Civil Remedy

The Court concluded that the conduct at issue represented a clear wrong against the plaintiff. Although criminal proceedings had addressed the defendant’s voyeurism, criminal law and tort law serve different purposes.

The Court explained that tort claims focus on providing individual redress for harm suffered. It drew a comparison to the Ontario Court of Appeal’s landmark decision in Jones v. Tsige, which first recognized intrusion upon seclusion in Ontario in 2012.

In the Alberta case, the Court similarly concluded that the invasion of privacy was the type of wrong for which the common law should provide a potential civil remedy.

An Incremental Development of Alberta Common Law

The Court also determined that recognizing intrusion upon seclusion would not create an indeterminate or substantial change to Alberta’s legal system. Instead, the Court characterized recognition of the tort as an incremental development of the common law. Privacy has long been protected through various legal causes of action, while developments in digital technology have greatly increased the ability to capture, store, and access private information.

The Court therefore concluded that recognizing intrusion upon seclusion was appropriate and that Alberta courts should have the tort available to address serious invasions of privacy. It specifically noted that Ontario courts had recognized the tort for more than a decade and stated that it was time for Alberta to do the same.

What Is the Test for Intrusion Upon Seclusion in Alberta?

The Court established a three-part test. A plaintiff seeking to establish intrusion upon seclusion must prove, on a balance of probabilities, that:

1. The defendant’s conduct was intentional or reckless;

2. The defendant invaded the plaintiff’s private affairs or concerns without lawful jurisdiction; and

3. A reasonable person in the position of the plaintiff would regard the invasion as highly offensive, causing distress, humiliation, and anguish.

The wording of the third requirement differs slightly from the Ontario test. Ontario asks whether a reasonable person would regard the invasion as highly offensive. The Alberta Court instead adopted a formulation that considers a reasonable person “in the position of the plaintiff.”

That distinction may become relevant as Alberta courts consider future intrusion upon seclusion claims and develop the scope and application of the newly recognized tort.

What the Decision Means for Alberta Privacy Litigation

The decision represents an important development in Alberta civil litigation because plaintiffs may now have a distinct common law cause of action directed specifically at intentional or reckless invasions of private affairs.

The tort is also conceptually different from the tort of public disclosure of private facts, which an Alberta court previously recognized in ES v. Shillington. Intrusion upon seclusion focuses on the invasion itself. The information or images do not necessarily have to be published or distributed for a claim to arise.

Future cases will likely provide further guidance concerning what types of conduct qualify as highly offensive, how courts will apply the reasonable-person standard adopted in this decision, and what damages may be available where intrusion upon seclusion is established.

DBB Law: Calgary Privacy and Civil Litigation Lawyers Advising Clients Throughout Alberta

Privacy disputes can involve highly personal information, digital records, workplace conduct, surveillance, intimate images, confidential communications, and other forms of alleged intrusion. The recognition of intrusion upon seclusion in Alberta adds another potential cause of action to the province’s developing privacy law landscape.

The civil litigation lawyers at DBB Law assist individuals and businesses with privacy disputes, civil claims, tort litigation, damages claims, and related disputes throughout Calgary and Alberta. If you have questions about an alleged invasion of privacy, intrusion upon seclusion, misuse of private information, or another civil litigation matter, contact us online or call 403-265-7777 to discuss your circumstances and available legal options.