CASUAL LEGAL: Public Disclosure of Private Facts: Alberta Court of Queen’s Bench Recognizes New Privacy Tort

By Jeffrey Daniels
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider 

In the September 2021 decision of ES v Shillington, the Alberta Court of Queen’s Bench recognized the new tort of Public Disclosure of Private Facts in Alberta. 

Alberta recently enacted the Protecting Victims of Non-Consensual Distribution of Intimate Images Act; however, there are limitations to the Act which contributed to the Court adopting the new tort. First, statutes cannot apply retroactively, so a plaintiff could not take action if the matters in question occurred before the Act came into force. Second, the Act only protects distribution of intimate images, which is narrowly defined and leaves a gap for distribution or disclosure of other harmful or sensitive information. 

To establish liability for the tort of Public Disclosure of Private Facts, a plaintiff must prove four elements:
(a)    the defendant publicized an aspect of the plaintiff’s private life;
(b)    the plaintiff did not consent to the publication;
(c)    the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff; and
(d)    the publication was not of legitimate concern to the public.

Although the facts in Shillington centered around the publication of intimate images, the Court expressly recognized the privacy interests inherent in financial, sexual and relationship matters, and personal health records. Additionally, the Court left the door open for other types of information to be considered sufficiently private to give rise to a remedy. 

Public bodies, businesses, and individuals should be cautious in handling and protecting sensitive information as the adoption of this tort expands the potential liability that could result from improper disclosure or distribution of private information. 

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or email casuallegal [at] abmunis.ca and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca, or call 310-MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
 

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.