Alberta Recognizes the Common Law Tort of Intrusion Upon Seclusion – What can Your Organization Learn?

Alberta has officially become the second Canadian province to formally recognize the common law tort of intrusion upon seclusion in the recent decision of BD v. Germain, 2026 ABKB 590 (“BD”), allowing plaintiffs to bring a claim against an individual defendant who has breached their privacy. In this blog post, we review the history of the tort of intrusion upon seclusion, the decision in BD and key takeaways for employers.

What is intrusion upon seclusion? – Jones v. Tsige

The common law tort of intrusion upon seclusion focusses on an invasion of an individual’s privacy as actionable in its own right – without need for a defendant to publish the private information or for an individual to incur financial loss as a result of the privacy breach. In 2012, Ontario became the first province to recognize the common law tort in Jones v. Tsige, 2012 ONCA 32.

In Jones v. Tsige, the plaintiff sought to recover damages from an individual defendant for breaching the plaintiff’s personal banking records. Ontario, unlike jurisdictions like BC, had no legislation recognizing a tort where an individual invaded another individual’s privacy.

In the landmark decision, the Ontario Court of Appeal recognized the tort for intrusion upon seclusion as consisting of the following elements:

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

BD v. Germain – Alberta Follows Suit

For nearly 15 years following Jones v. Tsige, while many courts around the country considered the decision, no other province definitively recognized the common law tort of intrusion upon seclusion. This remained the case until the Alberta Court of the King’s Bench (the “ABKB”) released BD this year.

In BD, the plaintiff was among the many victims that the defendant had secretly recorded while using the bathroom at work. Because the defendant never published the images and he was an individual, none of Alberta’s existing privacy legislation applied to his actions. Accordingly, the ABKB, finding the plaintiff’s situation demanded a remedy, recognized the common law tort of intrusion upon seclusion.[1] The ABKB held that the tort was necessary to recognize in the province, as “there have only been additional, more invasive, technological changes that affect individuals’ rights to privacy” since Ontario first recognized the tort in 2012.[2]

Takeaways for Organizations

The decision in BD aligns with a growing interest in personal privacy protection that has manifested across Canada. [3] For organizations, this case acts as an important reminder that breaches of personal privacy can lead to tangible–and potentially costly–consequences.

As technology has advanced, organizations and their employees now often have ready access to copious amounts of sensitive personal information. But this access does not come without risk. Following the BC Supreme Court’s decision in Ari v. Insurance Corporation of British Columbia, 2022 BCSC 1475, organizations may be vicariously liable for privacy breaches committed by a rogue employee. Accordingly, organizations should consider the nature and scope of personal data they collect, how employees are trained on handling and viewing said data, and whether reasonable security measures are in place to prevent unauthorized privacy breaches.

If you have any questions about this case or your company’s privacy practices, please contact a member of our Privacy & Data Management Group.