Prowse Barrette LLP counsel Philip Prowse and Melissa Boyles have now secured recognition of two new privacy torts in Alberta
EDMONTON, Alberta, August 27, 2026. The Court of King’s Bench of Alberta has recognized intrusion upon seclusion as a cause of action in this province for the first time. The decision, BD v Germain, 2026 ABKB 590, was released on August 25, 2026. The plaintiff was represented by Melissa Boyles and Philip Prowse at Prowse Barrette LLP.
The ruling matters most to people whose privacy has been invaded but whose private information was never shared with anyone. Someone secretly filmed, watched or listened to, or whose private records were read without authority, could often point to no civil claim in Alberta if nothing was ever published and no contract or confidence had been breached. Ontario has had that claim since Jones v Tsige in 2012. Alberta now has it too.
Justice E.C. Lew held that the proposed tort satisfied the framework the Supreme Court of Canada set in Nevsun Resources Ltd v Araya for the recognition of a new nominate tort. There were no adequate alternative remedies in Alberta’s privacy statutes or in the existing torts of trespass, breach of confidence and intentional infliction of mental suffering. The proposed tort reflects and addresses a real wrong. And recognizing it makes no indeterminate or substantial change to the legal system, but instead, is what the Court described as an incremental step consistent with the role of a court in developing the common law.
The Alberta test
A plaintiff must prove, on a balance of probabilities:
- 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.
The third element is a deliberate departure from the Ontario formulation. In Ontario, the question is asked of a reasonable person at large. In Alberta it is asked of a reasonable person standing where the plaintiff stood. Justice Lew preferred that approach for the same reason the House of Lords did in Campbell v MGN Ltd, and for the same reason it was preferred in ES v Shillington: the person whose view should count is the person affected, not the onlooker.
The second of two
Five years ago the same two lawyers appeared for the plaintiff in ES v Shillington, 2021 ABQB 739, where Justice Avril Inglis recognized public disclosure of private facts as a cause of action in Alberta. That tort addresses the case where private material is published. Germain addresses the case where nothing is published at all and the intrusion itself is the injury. Together the two decisions close much of the gap that Alberta courts had described for years as unsettled.
“Our clients did nothing more unusual than use a washroom at their workplace,” said Melissa Boyles. “What was taken from them was not information that could be handed back. It was the ordinary confidence that a private moment stays private. Alberta law had no name for that wrong. As of yesterday, it does.”
“Civil Courts here had been circling this question for more than a decade,” Ms. Boyles added, “the answer was never that the wrong was too small to matter. It was that no case had yet put the issue squarely. This one did.”
Background to the claim
The plaintiff, identified in the reasons as B.D., learned in April 2020 that she had been secretly recorded while using a washroom at her workplace. The defendant pleaded guilty to voyeurism under the Criminal Code in March 2021, and the Alberta Court of Appeal later dismissed a Crown sentence appeal in R v Germain, 2022 ABCA 257. B.D. had already obtained judgment on liability for intrusion upon seclusion and intentional infliction of mental suffering in September 2025. The August 25 decision resolves the separate question the Court reserved for special chambers, namely whether the tort should be recognized generally in Alberta. The amount of B.D.’s damages will be assessed at a further hearing.
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Media contact
Carla Otto, Chief Operating Officer, Prowse Barrette LLP
780 439 7171 info@prowsebarrett.com prowsebarrette.com
Decisions referred to in this release
BD v Germain, 2026 ABKB 590 (Court of King’s Bench of Alberta, Lew J), recognition at paras 21 and 40, test at para 42, variation from the Ontario formulation at para 43, Nevsun framework applied at paras 14 and 21, background facts at paras 5 to 12.
ES v Shillington, 2021 ABQB 739 (Court of Queen’s Bench of Alberta, Inglis J), recognition at para 63, elements at para 68, counsel at page 21.
Jones v Tsige, 2012 ONCA 32. Nevsun Resources Ltd v Araya, 2020 SCC 5 at paras 237 to 243. Campbell v MGN Ltd, [2004] UKHL 22. R v Germain, 2022 ABCA 257.
Note: ES v Shillington was argued while the firm carried the name Prowse Chowne LLP.