Canada has two federal statues that address personal privacy. The Privacy Act governs the collection, use, and disclosure of personal information by public organizations. The Personal Information Protection and Electronic Documents Act (PIPEDA) governs the collection, use, and disclosure of personal information by organizations in the course of commercial activities.
Alberta has a provincial statute that is substantially similar to PIPEDA – the Personal Information Protection Act (PIPA). PIPA applies to provincially-regulated private sector organizations, and to employee information held by provincially-regulated organizations.
The above-noted statutes do not create a cause of action for civil privacy breaches. As such, Albertans who have had their privacy breached by an individual (rather than by a private- or public-sector organization) may find themselves without legal recourse against the person who breached their privacy.
The Ontario Court of Appeal has addressed this gap in Ontario by recognizing the tort of ‘intrusion upon seclusion’ in its landmark decision Jones v Tsige, 2012 ONCA 32. Jones also acknowledged other civil privacy torts, which were later recognized in various provincial jurisdictions. These are ‘public disclosure of private facts’; ‘false light in the public eye’; and ‘appropriation of a person’s name or likeness’.
Some provinces have enacted legislation that provide a statutory cause of action for civil privacy breaches. Alberta does not have such legislation and, to-date, has only recognized one of the above-noted privacy torts.
The tort of public disclosure of private facts was recognized by the Court of Queen’s Bench of Alberta in ES v Shillington, 2021 ABQB 739. In that case, the plaintiff’s intimate partner posted explicit photos of her online without her knowledge or consent. The Court formally recognized the test for public disclosure of private facts in Alberta, being:
the defendant publicized an aspect of the plaintiff’s private life;
the plaintiff did not consent to the publication;
the matter publicized, or its publication, would be highly offensive to a reasonable person in the position of the plaintiff; and,
the publication was not of legitimate concern to the public.
The explicit nature of the photographs in Shillington made the third step of the test easy to meet, though explicit content or information is not a requirement for this tort. Other types of private information that could be found “highly offensive” if publicized may include other sensitive aspects of a person’s life, such as financial or health information.
While recognizing the tort of public disclosure of private facts is a step toward increased privacy protections for Albertans, there is still a gap in protection for privacy breaches between individuals. The tort of intrusion upon seclusion allows individuals to sue for a breach of privacy, even if the person at fault does not publicize the information discovered after the breach. The Jones decision set out a test to establish the tort of intrusion upon seclusion, being:
an unauthorized intrusion;
that the intrusion was highly offensive to the reasonable person;
the matter intruded upon was private; and
the intrusion caused anguish and suffering.
In Jones, the private information at issue was the plaintiff’s banking information, which was accessed by the defendant. The plaintiff and defendant were employed by the same bank, but at different branches. The defendant was in a common-law relationship with the plaintiff’s ex-husband. While the defendant did not otherwise publicize or disclose the plaintiff’s information to anyone else, simply accessing and viewing such highly personal and private information was sufficient to meet the elements of the test for intrusion upon seclusion.
To date, Alberta courts have declined to recognize the tort of intrusion upon seclusion. This tort has been pled in Alberta courts, though perhaps not with facts that would sufficiently convince a court that a new tort ought to be recognized.
When considering a civil claim of intrusion upon seclusion, Alberta courts have cited the test enunciated by the Supreme Court of Canada to recognize a new tort [Nevsun Resources Ltd v Araya, 2020 SCC 5, Nevsun]. For example, in Shillington, Justice Inglis stated that, in order for a new tort to be recognized by the courts, “…at a minimum it must reflect a wrong, be necessary to address that wrong, and be an appropriate subject of judicial consideration”.
Other Alberta decisions have cited Al-Ghamdi v Alberta, 2017 ABQB 684 (affirmed in 2020 ABCA 81) as authority for the proposition that there is no common law tort of breach of privacy in Alberta. I propose that this is an oversimplification of what was said in Al-Ghamdi and, respectfully, ignores the Court’s discretionary power to recognize a new tort, if appropriate.
The plaintiff in Al-Ghamdi was a self-represented individual who did not plead “intrusion upon seclusion” as a cause of action, but rather, pled that he suffered from a “breach of privacy”. Of note, this plaintiff commenced a total of 13 actions and was eventually found to be a vexatious litigant.
While the plaintiff claimed that his privacy had been breached, the Court – citing Pinder v Canada, 2015 FC 1376[Pinder] – held that was no common law tort for breach of privacy outside of a provincial statute providing such a cause of action. Respectfully, the Pinder decision could be interpreted differently. At paragraphs 107-108 of that decision, Justice Heneghan stated:
Presently, the law does not recognize a common law tort for breach of privacy. Some provinces have enacted legislation providing a right of action for breach of privacy…Recently, the Ontario Court of Appeal recognized the tort of intrusion on seclusion; see the decision in Jones v. Tsige (2012), 2012 ONCA 32 (CanLII), 108 O.R. (3d) 241. The Plaintiffs have not shown that their claim for damages for breach of privacy is justiciable. In other words, they have not shown that there is a recognized cause of action for breach of privacy.
The Federal Court in Pinder did not assess whether the common law tort of intrusion upon seclusion ought to apply on the facts in front of it, but rather acknowledges that Alberta does not presently have a cause of action through tort or statute for a “breach of privacy”. The Court in Pinder did not otherwise purport to limit the ability of Alberta courts to recognize the tort of intrusion upon seclusion.
Courts have discretion to recognize new torts if the test from Nevsun is met. In Shillington, the Court provided a thorough analysis considering whether it was appropriate to recognize a new tort in Alberta. The Court concluded that it was appropriate to recognize the tort of public disclosure of private facts because it identified a wrongful action for which there were no other adequate remedies. The author suggests that the Shillington decision departs from the way Courts have interpreted Pinder related to breach of privacy causes of action, and that there may be room for a successful pleading of intrusion upon seclusion in Alberta, so long as the Nevsun and Jones tests are both met.
As such, it is not necessary to wait for Alberta to enact legislation that provides a statutory cause of action for civil privacy breaches. Rather, strategic and thoughtful pleadings combined with the right factual basis may be sufficient to see this tort recognized in Alberta.
