Alberta Court Recognizes Tort Of Intrusion Upon Seclusion

On August 25, 2026, the Alberta Court of King’s Bench (ABKB) issued its decision in BD v Germain, 2026 ABKB 590, recognizing the common law tort of intrusion upon seclusion for the first time in Alberta. 

The case arose after the plaintiff (BD) was informed by her employer that she had been secretly recorded while using the bathroom at work. The recording, captured by the defendant (Douglas Germain), showed highly invasive images and was discovered after police found over 100 other similar recordings on Germain's devices. For over 6 years, Mr. Germain used his job as a tradesperson to gain access to private spaces to secretly film victims. In 2021, Mr. Germain pled guilty to voyeurism and was sentenced to a 15-month conditional sentence followed by two years of probation.

The central legal issue in this case was whether Alberta’s Courts should formally recognize intrusion upon seclusion as a common law tort. Citing the Supreme Court of Canada’s decision in Nevsun Resources Ltd v Araya, 2020 SCC 5, the ABKB set out the test for establishing a new common law tort, namely, (1) it must reflect a wrong, (2) no adequate alternative legal remedies must exist, and (3) its effects on the legal system cannot be indeterminate or substantial.

In this case, the court found the test from Nevsun to be satisfied. Firstly, the court found that there was a clear wrong inflicted upon BD by Mr. Germain. Secondly, the court concluded that existing Alberta torts, including trespass, breach of confidence, and infliction of mental suffering, did not adequately address this situation. Finally, the court held that recognizing the tort of intrusion upon seclusion would be an incremental step in the common law and a necessary tool for Courts to have at their disposal.

The ABKB therefore set out the test for intrusion upon seclusion, requiring:

1. The defendant’s conduct was intentional or reckless;
2. The defendant must have invaded, without lawful jurisdiction, the plaintiff’s private affairs, or concerns; and
3. A reasonable person, in the position of the plaintiff, would regard the invasion as highly offensive, causing distress, humiliation, and anguish.

This test differs only slightly from the test for the same tort in Ontario, recognized in 2012 (as previously reported by the E-TIPS® Newsletter here), by specifying in the final step that the reasonable person be in the position of the plaintiff.

Summary By: Claire Bettio