Privacy in the Prairies: Intrusion Upon Seclusion in Alberta

Overview

Alberta now has a civil remedy for one of the most personal forms of privacy violation. On August 25, 2026, the Court of King’s Bench of Alberta (the “Court”) released its decision in BD v. Germain, 2026 ABKB 590, formally recognizing the tort of intrusion upon seclusion in the province.

The defendant, Douglas Germain (“Germain”), secretly recorded the plaintiff, BD, while she used a workplace bathroom. BD asked the Court to recognize the tort so that she could seek damages directly from him. Justice E.C. Lew agreed, concluding that the tort reflects a genuine wrong, fills a gap left by existing remedies and represents an incremental development of the common law.

The decision brings Alberta in line with Ontario, which recognized the tort more than a decade ago in Jones v. Tsige, 2012 ONCA 32 (“Jones”).

Background

The facts underlying the claim are deeply disturbing. Mr. Germain, a plumbing, gas fitting and HVAC tradesperson, used his job to access private spaces and secretly film his victims. Police later found 111 voyeuristic recordings, taken over six years, on his cell phone, and more on his laptops. The recordings captured 117 victims, 31 of whom were identified and at least two of whom were minors. There was no evidence that he distributed the videos.

BD, a Government of Alberta employee, learned in April 2020 that she had been recorded while undressing and using the toilet at work. Mr. Germain later pleaded guilty to criminal voyeurism and received a 15-month conditional sentence followed by two years of probation.

The harm to BD was significant. She took a leave of absence and was diagnosed with post-traumatic stress disorder, acute stress reaction and anxiety. She continues to fear public bathrooms and tradespeople entering her workplace or home.

Key issues

The Court considered whether to recognize intrusion upon seclusion in Alberta by applying the framework set out by the Supreme Court of Canada (“SCC”) in Nevsun Resources Ltd. v. Araya, 2020 SCC 5. Under that framework, the SCC asked three questions (the “Nevsun Test”):

1. whether adequate alternative remedies already exist;
2. whether the proposed tort reflects and addresses a wrong visited by one person upon another; and
3. whether recognizing the tort would bring indeterminate or substantial change to the legal system.

Outcomes

Justice Lew found that the proposed tort satisfied each part of the Nevsun Test.

He began by grounding the analysis in the value of privacy itself. Section 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) protects privacy and, while the Charter does not govern disputes between private individuals, the common law should develop consistently with Charter values. The Court also drew on the Alberta Court of Appeal's observation, in Mr. Germain's criminal case, that privacy fosters "dignity, autonomy, and integrity.” He then addressed each part of the Nevsun Test:

• No adequate alternative remedies: No existing statute or tort gave BD a remedy against Mr. Germain. Alberta’s privacy statutes (the Personal Information Protection Act, the Protection of Privacy Act and the Access to Information Act) regulate organizations and public bodies, not individuals who violate one another’s privacy. Alberta’s intimate images legislation did not apply because the recordings were never distributed. Existing torts also fell short.
• A clear wrong: The Court found a clear wrong visited on BD by Mr. Germain. Criminal proceedings serve a different purpose from tort claims, which provide individual redress. Echoing Jones, the Court held that BD’s circumstances “cry out for a remedy.”
• An incremental change: Recognizing the tort would not bring substantial or indeterminate change to the legal system. The Court noted that technology has only become more invasive since Jones was decided.

The new test

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

• the defendant’s conduct was intentional or reckless;
• the defendant invaded, without lawful justification, 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 departs from Ontario’s formulation. Ontario asks how a reasonable person would view the invasion, while Alberta asks how a reasonable person in the position of the plaintiff would view it. In the Court's view, offensiveness should be judged from the victim's perspective, not that of an observer.

Key takeaways for businesses

BD v. Germain creates a new avenue of civil liability for privacy intrusions in Alberta. Organizations operating in the province should consider the following:

• Privacy litigation exposure has expanded: Albertans now have a direct civil claim for deliberate or reckless privacy intrusions, filling the gap left by the Personal Information Protection Act, the Protection of Privacy Act and the Access to Information Act. Compliance with privacy statutes is no longer the only measure of risk; organizations should expect intrusion upon seclusion claims to be pleaded alongside statutory complaints, negligence and breach of confidence claims following privacy incidents.
• Insiders, employees and contractors are a key risk vector: The intrusion in BD was carried out by a tradesperson who used his job to access private spaces. Although the claim was against an individual, plaintiffs may seek to name employers and engaging organizations, for example through vicarious liability or negligent supervision theories. Organizations should review background screening, contractor onboarding, supervision of access to sensitive areas and systems, and contractual privacy, indemnity and insurance provisions with service providers.
• The test favours plaintiffs: Because offensiveness is assessed from the perspective of a reasonable person in the plaintiff’s position, courts may give greater weight to the victim’s experience than under Ontario’s formulation. Conduct that an organization views as routine, such as workplace surveillance or broad access to employee or customer records, may be judged more harshly through the lens of the affected individual.
• Reckless conduct is enough: Liability does not require intent; recklessness suffices. Weak access controls, unrestricted snooping into personal information, or ignoring known misuse can create exposure. Organizations should enforce role-based and least-privilege access, log and audit access to personal information, and act promptly on red flags.
• Criminal or regulatory outcomes do not end the matter: A criminal conviction did not exhaust BD’s options, and the same logic applies to regulatory investigations. Incident response plans should anticipate parallel civil claims, preserve evidence, and coordinate legal, privacy, human resource and communications functions from the outset.

Now is the time for in-house legal and compliance teams to revisit privacy policies, workplace monitoring practices, vendor agreements and employee training in light of this decision.

For more information, please contact Roland Hung, Chair of the Privacy, Data & Cybersecurity Group and Co-Chair of the AI & Innovation Group.

The author would like to acknowledge Torkin Manes’ Articling Student Georgia Gardner for her invaluable contribution in drafting this bulletin.