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


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”.


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


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).


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);

*** Did not result in substantial and unreasonable interference

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


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

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