Executive summary: key legal and evidentiary issues

• Absolute privilege attached to the dissemination of a surreptitiously recorded intimate video during an in camera Early Intervention Case Conference (EICC), shielding the lawyers from civil liability.

• The Court of Appeal's reversal of Tuharsky v O'Chiese First Nation undermined the Applications Judge's reliance on a narrow exception to absolute privilege for irrelevant or gratuitous statements.

• Rule 4.20 governing judicial dispute resolution confidentiality was found inapplicable to EICCs, as they are distinct court-directed processes that do not require party consent.

• Three tort claims — breach of confidence, intentional infliction of mental distress, and public disclosure of private facts — were all defeated by the doctrine of absolute privilege attaching to the judicial occasion.

• Opposing counsel owe no broad duty of privacy or confidentiality to adverse parties, and no legislation or jurisprudence was cited to establish such an obligation.

• Despite acknowledging the conduct as "unseemly and ill-considered," the Court confirmed that accountability lies with the Law Society, not through civil litigation.

The underlying family law dispute and the intimate video

Robert Burns and Leanne Burns separated after sixteen years of marriage on October 6, 2021, but continued residing together in the family home. Shortly after the separation, Mr. Burns began a relationship with Nicole Lynn Green some time around October 15, 2021. At some point after their relationship began, Mrs. Burns began surveilling Mr. Burns and Ms. Green, going as far as installing hidden cameras in his bedroom. In December 2021, Ms. Burns surreptitiously recorded personal and intimate activities between Mr. Burns and Ms. Green. Mrs. Burns then shared this intimate video with her lawyers — Charles Osuji, Amanda Ovaici, and Charles Osuji Professional Corporation operating as Osuji & Smith Lawyers. The lawyers disseminated the intimate video to Mr. Burns' lawyer and others involved in court proceedings, submitting the intimate video to the Court for use in the upcoming EICC. In July 2022, Mr. Burns and Ms. Burns participated at an EICC as part of their divorce proceedings, where the lawyers played the video. On July 15, 2022, Mr. Burns informed Ms. Green that Mrs. Burns had installed recording devices to monitor his activities in his bedroom. Mr. Burns showed Ms. Green the intimate video, and the initial frames depicted Ms. Green's exposed buttocks. Ms. Green immediately requested that the intimate video be stopped. The resulting emotional impact caused both Mr. Burns and Ms. Green to suffer emotional distress, straining their relationship.

The claims brought by Burns and Green

On July 12, 2024, Mr. Burns and Ms. Green each filed a Statement of Claim against the lawyers and Ms. Burns, alleging that the recording constituted a significant invasion of privacy, was illegal, and that its dissemination caused mental and physical health issues, significant emotional distress, embarrassment and humiliation. They asserted three tort claims: breach of confidence, intentional infliction of mental distress, and public disclosure of private facts. The relief sought in the actions was almost identical, save for the differing amounts claimed in damages.

The applications to strike and the initial decision

The lawyers applied to strike each action on August 21, 2024, under Rule 3.68 of the Alberta Rules of Court, on the basis that the claims did not disclose a reasonable claim and had no merit. The Applications Judge heard the matter on November 6, 2024, and dismissed the strike applications. She relied on Tuharsky v O'Chiese First Nation, 2024 ABKB 511, which had carved out a narrow exception to absolute privilege. Specifically, the judge in Tuharsky questioned whether absolute privilege extended to irrelevant or gratuitous statements, especially when those statements were made about a non-party. The Applications Judge concluded that in certain circumstances a Court may need to make further inquiries into the occasion, which requires further evidence, making it not plain and obvious that the claims would fail. The Applications Judge did not make any finding on the duty of care argument, given her findings on the limits to absolute privilege, and adjourned the alternative relief for summary judgment.

The appeal and the significance of the Tuharsky reversal

The lawyers filed Notices of Appeal on November 19, 2024, and the appeals were consolidated by an Order of the Court pronounced on December 17, 2024. Critically, between the time the Applications Judge rendered her decision and the appeal hearing, the Alberta Court of Appeal released its decision in Tuharsky v O'Chiese First Nation, 2025 ABCA 267, on July 28, 2025, which reversed the lower court ruling that the Applications Judge had relied upon. The Court of Appeal clarified that absolute privilege attaches to the occasion on which a statement is made, not the words used to make it. The central focus of the analysis is the occasion, not the content of or intention underlying a statement. The appellate court also confirmed that no exception to absolute privilege exists with respect to statements made about non-parties in filed Court pleadings or during oral submissions. Justice Froese heard the appeal at a half-day Special Application on September 3, 2025.

The role of Rule 4.20 and the EICC process

Justice Froese considered whether Rule 4.20, which governs confidentiality in judicial dispute resolution, applied to EICCs. The Court found that it cannot be said that Rule 4.20 necessarily applies to EICCs, as they are different processes governed by different provisions under the Rules. An EICC is a form of conference, which the Court may, at any time, direct the parties and any other person to attend and does not require the parties' consent, under Rules 4.10–4.11. In contrast, parties generally engage in judicial dispute resolution processes by consent. Nevertheless, the Court noted that settlement discussions in EICCs are without prejudice, and EICCs are conducted in camera. The fact that the events giving rise to the actions occurred in an EICC, an in camera judicial proceeding, was critical to the issue of absolute privilege.

Absolute privilege as a complete defence

Justice Froese held that absolute privilege attached to the occasion of the EICC. There was no dispute that the EICC was a judicial or quasi-judicial proceeding, and as such, the intimate video was shared within a step recognized as affording privilege. It does not matter what the content or motive was behind sharing the intimate video. The Court found there was no need to look further to determine whether the intimate video was irrelevant or gratuitous, as absolute privilege attaches to the occasion. Disclosure was recognized as an important part of the EICC process in order to enable meaningful settlement discussions, and parties were encouraged to exchange applicable disclosure. The disclosure of the intimate video, however ill-judged and gratuitous it may have been, was within the process for EICCs set out by the Court. The immunity is not confined to defamatory statements or actions; it attaches to anything said or done by anybody in the course of judicial proceedings whatever the nature of the claim made in respect of such behavior or statement. Although Ms. Green was not a party to the divorce proceedings, there is no exception for non-parties if absolute privilege attaches to the occasion. The pleadings did not identify anyone that was not a party to the EICC or the family law proceeding to whom the video was shared; the video was sent to the lawyers, the Court, counsel for the children, and Mr. Burns' counsel.

Lawyers' duties to opposing parties

The Court also addressed the question of whether the lawyers owed a duty to the respondents. Justice Froese found that they did not. In order to ensure the efficacy of the adversarial system, the duties that a lawyer owes to the opposing party are viewed very restrictively. Any duty owed is to the Court and to the governing body of the legal profession and not to the plaintiff. Although there are some situations where a lawyer may be liable to a non-client, as has been found in some negligence claims, generally speaking, lawyers do not owe a duty to a party adverse in interest to their client. The respondents did not provide any legislation or jurisprudence that imposes a broad duty of privacy or confidentiality on lawyers in relation to opposing parties whose interests are adverse to that lawyer's own client.

The ruling and outcome

Justice Froese allowed the appeal and struck the actions in their entirety pursuant to Rules 3.68(1)(a) and 3.68(2)(b). The actions disclose no reasonable claim, as absolute privilege applies in this case. The Court acknowledged that it is difficult to conceive of a circumstance in which the playing of the intimate video could be conceived as anything other than unseemly and ill-considered, regardless of whether it was done in the advancement of a client's case, and that counsel must exercise good judgment when determining what to put as evidence before a Court and how they do that. However, the lawyers' conduct is governed by the Law Society, and there are procedures through which they may be held accountable; no civil action lies against them for such conduct in this case, as absolute privilege attaches to the occasion. The successful parties were the defendant lawyers — Charles Osuji, Amanda Ovaici, and Charles Osuji Professional Corporation operating as Osuji & Smith Lawyers. No specific monetary award was ordered in their favour; rather, the claims against them were dismissed entirely. Should the parties not be able to agree upon costs, they may contact the Court to make arrangements to argue costs.