Alberta now has two privacy torts, and our lawyers argued for both

What BD v Germain and ES v Shillington mean for people whose privacy has been invaded

Melissa Boyles and Philip Prowse | August 26, 2026

On August 25, 2026, the Court of King’s Bench of Alberta recognized the tort of intrusion upon seclusion. ¹ It is the second privacy tort to be recognized in this province in five years, and Prowse Barrette LLP acted for the plaintiff on both occasions.

The problem the decision solves

Think of the person who is secretly filmed and only finds out about it years later when the police call. Nothing was ever posted. Nobody outside the investigation ever saw the footage. In Alberta, until this week, that person often had no civil claim to bring. Trespass protects land and the person, not a private moment. Breach of confidence requires that the information first be given to somebody in confidence, which is the opposite of having it taken. Intentional infliction of mental suffering requires conduct calculated to produce harm and a visible, provable illness, and a defendant who never expected to be caught can plausibly say they calculated nothing at all. ²

Alberta’s privacy statutes did not fill the gap either. They regulate what organizations and public bodies do with personal information. None of them gives one individual a remedy against another individual who invades their privacy. ³

What the Court decided

The Honourable Justice E.C. Lew applied the framework the Supreme Court of Canada set out in Nevsun Resources Ltd v Araya, which asks three things of any proposed new tort: whether adequate alternative remedies already exist, whether the tort reflects and addresses a real wrong, and whether recognizing it would work an indeterminate or substantial change to the legal system. ⁴ The Court answered all three in the plaintiffs’ favour and recognized the tort. ⁵

To succeed, a plaintiff in Alberta must now prove, on a balance of probabilities:

1. the defendant’s conduct was intentional or reckless;
2. the defendant 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. ⁶

The third element of the test

That third element is not a copy of the Ontario test in Jones v Tsige where the question is put to a reasonable person at large. In Alberta it is put to a reasonable person standing where the plaintiff stood. The Court took that approach from the House of Lords in Campbell v MGN Ltd and from this Court’s own reasoning in Shillington. ⁷ The distinction sounds small, but the impact is large. An invasion that a detached observer might shrug at can be devastating to the person it happened to, and the Alberta test asks the question that actually matters: the effect on the person whose privacy was invaded.

Why earlier Alberta cases did not stand in the way

Alberta courts had said for years that the law here was unsettled and that no common law tort of breach of privacy existed. The Court reviewed those authorities and found them distinguishable on their facts. None had involved circumstances that called for adoption of the tort, and so none had squarely determined the question now decided. ⁸

The facts, briefly

The plaintiffs, identified in the reasons only as B.D. and C.H., were told by their employer in April 2020 that they had been secretly recorded while using a washroom at work. The defendant pleaded guilty to voyeurism, and the Alberta Court of Appeal later dismissed a Crown appeal of his sentence. B.D. described feeling sick, exposed and humiliated, took a leave from work and was diagnosed with post-traumatic stress disorder, acute reaction to stress and anxiety. ⁹

The plaintiffs already held judgment on liability. The August decision answered the separate question the Court had reserved, whether the tort should be recognized generally in Alberta. The plaintiffs’ damages will be assessed at a further hearing. ¹⁰

The first tort: public disclosure of private facts

In 2021, in ES v Shillington, Justice Avril Inglis recognized the tort of public disclosure of private facts in Alberta. ¹¹ That claim arose from intimate images shared privately within a relationship and then posted online. A plaintiff relying on it must show that the defendant publicized an aspect of their private life, that they did not consent, that the matter publicized or its publication would be highly offensive to a reasonable person in their position, and that the publication was of no legitimate concern to the public. ¹²

Read together, the two decisions cover the two halves of the same problem. Shillington answers the case where private material is put in front of other people. Germain answers the case where nothing is ever shown to anyone and the taking itself is the injury. ¹³

What is not yet settled

Two points are worth stating plainly rather than glossing over. First, this is a decision of the Court of King’s Bench. It is a considered decision that squarely decides the issue, but it is not an appellate ruling, and the Court of Appeal has not yet spoken to the tort in Alberta. Second, the measure of damages for intrusion upon seclusion in this province is still to come, since quantum in this action was reserved to a later hearing. Anyone assessing the value of a claim should treat the Ontario range as a guide and nothing firmer.

If your privacy has been invaded

If you have been recorded, watched, followed, or had your private records accessed without authority, there is now a civil claim remedy in Alberta, whether or not anything was ever published. Limitation periods apply and they are not generous, so the sooner the facts are reviewed the better. Our litigation group can tell you quickly whether you have a claim worth pursuing.

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Authorities and pinpoint references

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