Alberta Recognizes Intrusion upon Seclusion and Aligns with Ontario

The Alberta Court of King's Bench has formally recognized the tort of intrusion upon seclusion in BD v Germain.

In doing so, the court largely adopted the framework established by the Ontario Court of Appeal in Jones v Tsige. Few will be surprised by that result. Intrusion upon seclusion has existed in Ontario for more than a decade, and Alberta courts have long acknowledged the possibility that the tort might eventually be recognized. What is potentially more significant is a subtle modification to the third branch of the Jones test. Alberta asks whether a reasonable person "in the position of the plaintiff" would regard the invasion as highly offensive, whereas Jones refers simply to a reasonable person.

At first glance, that additional language appears to add a new layer to the analysis. A closer reading of the judgment, however, suggests a narrower point. While the court adopted a slight gloss on the Jones formulation, it did so while expressly relying on authorities that emphasize the importance of assessing privacy claims from the perspective of the privacy interest actually affected. The more interesting question may therefore be whether BD v Germain meaningfully changes the law, or simply makes explicit a contextual inquiry that was already implicit in Jones. The answer will likely emerge only as Alberta courts begin applying the tort in cases that are less clear-cut than the egregious privacy violation before the court.

Recognition of Intrusion Upon Seclusion

The decision arose from an egregious invasion of personal privacy. The defendant secretly recorded the plaintiff while she was using a workplace washroom. The recordings formed part of a broader pattern of voyeuristic conduct involving numerous victims over several years. The defendant ultimately pleaded guilty to voyeurism under the Criminal Code.

The plaintiff learned of the recording through her employer and later viewed the footage. The evidence before the court was that the incident caused significant psychological harm, including post-traumatic stress disorder, anxiety, humiliation, sleep disturbances, and an ongoing fear of being observed or recorded.

The court applied the framework established by the Supreme Court of Canada in Nevsun Resources Ltd. v. Araya to conclude that intrusion upon seclusion should be recognized as a distinct common law tort in Alberta. The court found that existing statutory and common law remedies did not adequately address serious privacy invasions, that deliberate intrusions into an individual's private affairs constitute a clear legal wrong warranting redress, and that recognition of the tort would represent only an incremental development of the common law rather than a substantial or indeterminate change to Alberta's legal system. The court therefore adopted the following test for intrusion upon seclusion:

1. The defendant's conduct must be intentional or reckless;
2. The defendant must have invaded, without lawful authority, 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.

Small Change or Sea Change?

The first two elements of the Alberta test closely mirror the Ontario formulation. It is the third element that attracts attention.

In Jones, the Ontario Court of Appeal asked whether a reasonable person would regard the invasion as highly offensive. In BD v Germain, the Alberta court modified the language slightly, requiring that the invasion be one that a reasonable person "in the position of the plaintiff" would regard as highly offensive.

The additional words immediately raise an interesting question: what, if anything, do they add?

The decision itself provides little guidance on this point. The facts involved a paradigmatic privacy violation. A person secretly recorded while using a workplace washroom would almost certainly satisfy either formulation of the test. As a result, the court identified an interesting conceptual issue without confronting a case in which the distinction could affect the outcome.

At first glance, the phrase "in the position of the plaintiff" appears to add a new qualification to the Jones test. Read in isolation, it may even suggest a more individualized inquiry. However, the court's explanation points in a narrower direction. The court stated that it preferred the perspective of the person affected by the invasion rather than the person observing it.

The court drew that language from a decision of the House of Lords in Campbell v MGN. Campbell concerned a privacy claim brought by Naomi Campbell after a newspaper reported that she was receiving treatment for drug addiction and published details concerning her attendance at Narcotics Anonymous meetings together with photographs taken outside those meetings. Campbell accepted that publication of the fact of her addiction itself was legitimate given her previous public denials, but challenged publication of the additional details and photographs.

The Court of Appeal and a minority of the House of Lords concluded that the additional details formed part of an otherwise publishable story and did not materially add to the invasion of privacy. The majority disagreed. In its view, the issue was not whether the additional information materially altered the reader's understanding of an otherwise publishable story, but whether the disclosure engaged distinct privacy interests from the perspective of the person whose information had been exposed.

Viewed in that light, the Alberta Court's reformulation appears less a departure from Jones than an articulation of something that may already have been implicit in the Ontario jurisprudence. Even under the original Jones formulation, privacy claims were not assessed in the abstract. Courts necessarily examined the nature of the information, the circumstances of the intrusion, and the privacy interests at stake. The Alberta court's reference to a reasonable person "in the position of the plaintiff" may simply make that contextual inquiry more explicit.

Looking Forward

For now, the decision is best understood as bringing Alberta into substantial alignment with Ontario's recognition of intrusion upon seclusion. While the court adopted a slight gloss on the Jones wording, that gloss may simply reflect the reality that privacy claims are assessed against the particular privacy interest affected and the factual context in which the alleged invasion occurred. Whether Alberta courts ultimately treat the phrase "in the position of the plaintiff" as adding anything beyond that contextual inquiry will likely only become apparent in future cases that lie closer to the boundaries of the tort.