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Motherwell et al v Motherwell (1976), 73 D.L.R. (3d) 62 (Alta. SC, App Div)

Facts:

Defendant suffered from a paranoid condition and was mentally unstable, continuously harassing plaintiffs and making false accusations by telephone and mail. Plaintiffs brought actions for invasion of privacy/nuisance, claiming nominal damages and injunction. Defendant argued no action lay to restrain “lawful communications”.

Issue(s):

Does invasion of privacy fall within an existing category of nuisance? If not, does it have its own remedy in tort?

Ratio:

Invasions of privacy may warrant the creation of a new category of nuisance if it is sufficiently within the concept of the principles that the tort is trying to advance (not specifically defined as a common law tort of invasion of privacy).

Analysis:

Invasion of privacy may exist outside of the fixed category of "nuisance"; but may still warrant creation of a new category if it is sufficiently within the concept of the principle the tort is trying to advance.

Use of "communications agencies in the nature of public utilities" are non-selective; the plaintiff cannot control the incoming communications.

** Telephone:
*** Seen as a part of daily life which is necessary in a social sense (recognizing abuse through invasion of privacy is in the general interest);
*** Receiver cannot know who is calling him until he answers, yet calls must be answered for system to work;
*** Abuse of telephone system is a "real and substantial interference of living according to the standards of the average man" (Clerk & Lindsell test);

**Mail
*** Did not result in substantial and unreasonable interference

Here, the tort was NOT specifically defined in terms of a common law right to privacy.

Holding:

Upheld trial judge’s award of nominal damages/injunction against calls.


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