A dispute between next-door neighbours was ruled on by the Yukon Supreme Court where it was found that one had physically injured the other, but that some of his further accusations left him liable for defamation.
Justice Karen Wenckebach ruled on the matter between Jerry Miller and Mark Mendelsohn on Sept. 9. The case dealt with allegations that Mendelsohn had pushed Miller down using a snow shovel and further claims that Mendelsohn tried to run Miller down in his truck and flashed him the middle finger on a third occasion. The second and third claims were the centre of a countersuit in which Mendelsohn claimed defamation.
Wenckebach’s written decision states that the men were neighbours, but there was significant animosity between their families. It goes on to describe how in early 2018, Miller called police to allege that Mendelsohn had pushed him down as the two were shovelling snow.
The court document states that Mendelsohn was charged with assault but those charges were stayed and he entered into a peace bond.
Both action and counteraction were heard in a civil trial. Mendelsohn represented himself while Miller had the counsel of Daniel Shier.
Wenckebach found that Mendelsohn committed a battery against Miller. The court heard from witnesses who described Mendelsohn pushing Miller down with the shovel. Mendelsohn testified that Miller “flopped down onto the ground” and yelled out “Mark hit me” when he was not near him. He said he did not believe Miller was actually injured. Wenckebach’s decision states that she found the evidence of the other witnesses was credible, but Mendelsohn was unreliable.
Court documents describe an injury to Miller’s knee as a result of being knocked down that would eventually require surgery.
The damages Miller was found entitled to includes money covering the negative effects the injury had on his ability to work and earn a living both in the past and in the future.
Wenckebach also approved portions of the countersuit suggesting Miller’s allegations against Mendelsohn were defamatory.
“In the counter-suit, I conclude that Mr. Miller defamed Mr. Mendelsohn when he made the three allegations. I find that qualified privilege applies to the allegation that Mr. Mendelsohn knocked Mr. Miller over, but not to the allegations that Mr. Mendelsohn drove at Mr. Miller in his truck nor that he showed him the finger. Consequently, Mr. Mendelsohn is successful in his counter-suit on those two allegations,” Wenckebach’s judgement reads.
It states that the qualified privilege defence does not apply because Miller reported these events to RCMP Victim Services rather than to police themselves.
“I conclude that qualified privilege does not apply because I do not have enough evidence to conclude that Mr. Miller had an interest in making the statements to victim services, or that victim services had a duty to receive them,” the judgement reads.
“My decision turns entirely on the facts of this case and on the lack of the evidence presented. I am not finding that, as a general principle, qualified privilege does not apply to complainants receiving assistance from victim services.”
Wenckebach found that Mendelsohn is entitled to $10,000 in damages.
This however pales in comparison to what Miller is entitled to. Between general damages, punitive damages and compensation for lost income and medical expenses the judge found Miller is entitled to $201,060.
Contact Jim Elliot at jim.elliot@yukon-news.com