Jeannine M. Kapelus v. Zhong Hua Hu, et al.

(British Columbia) (Civil) (By Leave)


Canadian charter - civil - Torts, Motor vehicles.


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Canadian Charter of Rights and Freedoms Torts Motor vehicles Damages Did the Court of Appeal err in refusing to hear the Applicant’s Charter argument Was the trial judge biased Did ICBC exceed its jurisdiction Are provisions of the Insurance (Vehicle) Act (B.C.) unconstitutional by reason of vagueness Is the government vehicle insurance plan unconstitutional taxation Did both courts err in misapprehending the evidence on the severity and duration of injuries Did the appellate court err in confirming the denial of the claim that the deductible was not waived Did the appellate court err by confirming that it was material that the physician had not seen the need for a referral to a specialist Did the appellate court err by finding the award of special damages for chiropractor treatment was based on the evidence of on going symptoms Did the appellate court err by reviewing the evidence and making new findings of fact Did the court err by finding that the trial judge’s estimate of damages was not erroneous or demonstrably low Did the appellate court err by finding there was no error of principle in disallowing costs Did the appellate court err in finding the claimed loss in vehicle value was without merit Did the appellate court err by failing to find that the ICBC lawyer repeatedly gave evidence via her submissions and they were accepted.

The applicant’s car was rear ended by a car driven and owned by the respondents. There was no issue of liability or dispute over the fact that the applicant was injured. At trial, the judge disallowed claims for a decrease in value of the vehicle, for a reconstruction expert, and for the deductible, finding insufficient evidence of those claims and on whether the deductible had been waived. Similarly, claims for future care were not supported by medical evidence and were disallowed. The judge awarded special damages for the costs of a medical report, visits to a chiropractor, car rental, and gardener, power washer and housekeeper services. He awarded non pecuniary damages of $15,000, holding that there was insufficient evidence to support many of the applicant’s complaints. Finally, the judge refused to order costs on the basis that the total judgment fell within the jurisdiction of the Provincial Court. The applicant appealed the decision, alleging 14 errors by the trial judge. The Court of Appeal for British Columbia dismissed the appeal.