Motherwell v. Motherwell, (1976) 1 A.R. 47 (CA)

• Judge: Sinclair, Clement and Moir, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 30, 1976
• Citations: (1976), 1 A.R. 47 (CA)

Motherwell v. Motherwell (1976), 1 A.R. 47 (CA)

MLB headnote and full text

Motherwell v. Motherwell

Indexed As: Motherwell v. Motherwell

Alberta Supreme Court

Appellate Division

Sinclair, Clement and Moir, JJ.A.

September 30, 1976.

Summary:

This case arose out of a claim for damages and an injunction against the defendant for harassing the plaintiffs in their home by abuse of the telephone system. The defendant was related to the plaintiffs and harassed the plaintiffs by making an unreasonable number of telephone calls to the plaintiffs, sometimes as many as 30 calls an hour. The purpose of many of the calls to her brother was to malign her sister-in-law. The trial court granted the plaintiffs nominal damages and an injunction which restrained the defendant from harassing the plaintiffs by telephone and by personal contact.

On appeal to the Alberta Court of Appeal the appeal was dismissed and the judgment of the trial court was affirmed. The Alberta Court of Appeal stated that the acts of the defendant constituted an invasion of the privacy of the plaintiffs. The Alberta Court of Appeal stated that the acts of the defendant constituted a real interference with the comfort or convenience of living according to the standards of the average man - see paragraph 27.

Courts - Topic 5

Stare decisis - Authority of judicial decisions - Authority and use of precedents - The Alberta Court of Appeal stated that the rule of stare decisis operates to regulate the application of precedents to cases which can be said to fall within a category - See paragraph 17.

Courts - Topic 23

Stare decisis - The common law - Application of principle to new circumstances - The Alberta Court of Appeal stated that common law principles should be adapted to meet new circumstances and needs - The Alberta Court of Appeal stated that the courts, when confronted with a new fact situation, should ask not whether it is covered by authority, but whether recognized principles apply to it - See paragraphs 11 to 15.

Courts - Topic 26

Stare decisis - The common law - Creation of new categories - The Alberta Court of Appeal stated that the creation of a new category is warranted where fact situations lie sufficiently within a common law principle but do not appear to be within an established category - See paragraph 17.

Injunctions - Topic 694

General principles - Considerations affecting the grant of an injunction - No requirement of special damage - The Alberta Court of Appeal stated that no special damage is required to support an injunction - The Alberta Court of Appeal stated that the issue of an injunction depends upon the loss of amenities of the premises in a substantial degree - See paragraph 24.

Torts - Topic 5442

Invasion of privacy - Unwanted communications by telephone - Persons entitled to a remedy - The Alberta Court of Appeal restrained the defendant from harassing the plaintiffs in their homes by abuse of the telephone system - The Alberta Court of Appeal held that a married female plaintiff was entitled to maintain an action against the defendant by virtue of her occupancy of the matrimonial home - See paragraphs 28 to 33.

Torts - Topic 5446

Invasion of privacy - Unwanted communications by telephone - The defendant harassed the plaintiffs in their homes by abuse of the telephone system - The Alberta Court of Appeal granted the plaintiffs nominal damages and an injunction which restrained the defendant from harassing the plaintiffs by telephone and by personal contact - The Alberta Court of Appeal stated that the acts of the defendant constituted a real interference with the comfort and convenience of living according to the standards of the average man - See paragraph 27.

Words and Phrases

Principle - The Alberta Court of Appeal discussed the meaning of the word "principle" in the common law - See paragraph 16.

Cases Noticed:

Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor et al., [1937] 58 C.L.R. 479, refd to. [para. 11].

Dorset Yacht Club v. Home Office, [1970] A.C. 1004, folld. [para. 12].

O'Rourke et al. v. Schacht, 3 N.R. 453; [1976] 1 S.C.R. 53, folld. [para. 12].

Haig v. Bamford et al. (1976), 9 N.R. 43, folld. [para. 12].

Canadian Aero Service Limited v. O'Malley et al., [1974] S.C.R. 592, folld. [para. 13].

British Movietonews Ltd. v. London & District Cinemas Ltd., [1952] A.C. 166, folld. [para. 14].

James More & Sons Ltd. v. University of Ottawa (1975), 49 D.L.R.(3d) 666, folld. [para. 14].

County of Carleton v. City of Ottawa, [1965] S.C.R. 725, folld. [para. 14].

Donoghue v. Stevenson, [1932] A.C. 562, folld. [para. 14].

Fender v. St. John-Mildmay, [1938] A.C. 1, folld. [para. 17].

Jansson v. Driefontein Consolidated Mines, [1902] A.C. 484, folld. [para. 17].

Sedleigh-Denfield v. O'Callaghan, [1940] A.C. 880, refd to. [para. 20].

St. Helen's Smelting Co. v. Pipping (1865), 11 E.R. 642, folld. [para. 20].

Newman et al. v. Conair etc., [1973] 1 W.W.R. 316, folld. [para. 20].

J. Lyons and Sons v. Wilkins, [1899] 1 Ch. 255, refd to. [para. 21].

Southport Corporation v. Esso Petroleum Co. Ltd., [1956] A.C. 218, refd to. [para. 21].

Cunard v. Antifyre Ltd., [1933] 1 K.B. 551, refd to. [paras. 21, 30].

Torquay Hotel Co. Ltd. v. Cousins, [1968] 3 W.L.R. 540, refd to. [para. 22].

Thompson-Schwab et al. v. Costaki et al., [1956] 1 All E.R. 652, refd to. [para. 23].

Stoakes et al. v. Brydges, [1958] The Queensland Law Reports 9 at 10, folld. [para. 27].

Broder v. Saillard, [1876] 2 Ch. D. 692, folld. [para. 28].

Malone v. Laskey, [1907] 2 K.B. 141, refd to. [para. 29].

Metropolitan Properties Ltd. v. Jones, [1939] 2 All E.R. 202, refd to. [para. 31].

Foster v. Warblington Urban Council, [1906] 1 K.B. 648, refd to. [para. 32].

Statutes Noticed:

Alberta Government Telephone Act, R.S.A. 1970, c. 12, sect. 31 [para. 10].

Authors and Works Noticed:

Burns, Peter, The Law of Privacy: The Canadian Experience, 1976 Canadian Bar Review, vol. 54, no. 1, p. 1 [para. 10].

Fridman, G.H.L., Reflections on Restitution, vol. 8, 1976 Ottawa Law Review 156 [para. 14].

Clerk and Lindsell on Torts (13th Ed.), paras. 1391 [para. 19]; 653 [para. 23]; 1395 [para. 20]; 1396 [para. 27].

Jowitt, Earl, Dictionary of English Law, vol. 2, p. 1639 [para. 19].

Counsel:

N.C. Wittmann, for the appellant Elizabeth Motherwell;

F.R. Foran, for John and Dorothy Motherwell;

C.D. Evans, for William Motherwell.

The judgment of the Alberta Court of Appeal was delivered by CLEMENT, J.A., on September 30, 1976, at Calgary, Alberta.