Lawlor v. Galaxy Mobile Storage Inc. et al, 2018 BCPC 330

Citation: Lawlor v. Galaxy Mobile Storage Inc. et al 2018 BCPC 330 Date: 20181206 File No: 25432 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: JILLIAN LAWLOR CLAIMANT AND: GALAXY MOBILE STORAGE INC., GILLIAN EPP, GALAXY REMOVALS LTD., SEAN GIESBRECHT a.k.a. SEAN CARFRAE DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Appearing for the Claimant: Declan Lawlor Appearing for the Defendants: Sean Giesbrecht Place of Hearing: North Vancouver , B.C. Dates of Hearing: Dec. 29, 2017; Apr. 6, 12, Sept. 14 and Oct. 29, 2018 Date of Judgment: December 6, 2018

[ 1 ] The claimant, Ms. Lawlor, is seeking damages arising from a residential move. The defendants are the principals of the business which was involved in the move. To summarize, the claimants say there were overcharged for the move and when they complained to the movers, the movers left without delivering their property. When their property was eventually returned to them much of it was damaged and some items were missing. Evidence for the Claimants [ 2 ] On July 22 nd Ms.

Lawlor contacted Galaxy Moving and Storage also doing business as Galaxy Mobile Storage, Galaxy Moving and Galaxy Moving and Mobile Storage (Galaxy). The website represented that Galaxy used only “Insured and Bonded Vehicles and Employees”, asserted that Galaxy did not use “temps” or “part-time movers” or “contractors” and that they were fully licensed and insured. The website Ms. Lawlor accessed did not reflect any corporate entity. [ 3 ] Ms. Lawlor explained the nature of the move to a person on the phone.

The Lawlor family were vacating one home but were unable to move directly into their new home so their possessions had to be taken to a nearby storage facility on the north shore. An email from Galaxy was sent to her with information on how to provide the deposit. A $200 deposit was e-transferred to hold their move date which was scheduled for July 26 th . The quote was for 3 movers and one truck at a cost of $145.00 an hour. Ms. Lawlor was assured the move could be done in one day. [ 4 ] On the 26 th the movers arrived a half an hour late at 9:30. Ms. Lawlor walked them through the house.

She was again assured the move would be done in one day. She was presented with a contract that was partially filled in with the same quote information she had been given over the phone. She signed the contract. She initially testified she believed she had been given a copy of the contract at that time. However, she was clearly mistaken as the only copy the Lawlors had was one with Mr. Lawlor’s writing on it that was provided to him at the end of the day on the 26 th . Ms.

Lawlor testified that none of the exclusionary terms on the front or the back of the contract were brought to her attention. [ 5 ] The move proceeded without issue until the late afternoon. After the truck had taken the first load to storage, one of the movers quit working. As a result the unloading was delayed. The two remaining movers returned to the home at around 6:30 but by then it was too late to move the second load as the storage facility would be closed before they could get there. Mr.

Lawlor had already communicated to a person at the Galaxy office and to the movers that there was no point in them returning to the home after they had unloaded the first load. Instead, they had already arranged for the movers to return the next morning at 9:00 to move the second load. For reasons not known to the Lawlors the movers drove back to their residence anyway. Mr. Lawlor was given the contract which he noted up showing the time he was told the 3 rd mover quit and the time the movers arrived back at their home.

He said there was a conversation with “Mike” during which the move was again arranged to complete the following morning. No request for payment was made by anyone from Galaxy at the end of the day on the 26 th . [ 6 ] The next morning the movers again arrived late at 9:30. The movers left the home with the second load at 12:15. It is unclear what the movers were doing between then and 2:00 pm when the truck arrived at the storage facility.

In the meantime, at around 1:30 “Mike” began demanding the Lawlors pay $2,545.54 immediately or their property would not be unloaded and, further, that the unloading would have to finish by 3:30 or there would be more charges. As this amount was well in excess of the quoted cost Mr. Lawlor asked to see the bill. He was told that the movers had the bill. Mr. Lawlor contacted Ms. Lawlor to e-transfer that amount which she promptly did. [ 7 ] Due to the time it took for the money transfer to occur, Galaxy demanded a further $325.00 to cover the extra time which was not covered by the earlier payment. Mr.

Lawlor was at work and advised he would attend to the storage facility as soon as he could to meet the movers and sort out the charges. However, in the meantime, Mr. Geisbrecht instructed the movers to leave the storage facility without unloading the second load as, in his view, Galaxy was not going to be paid the further $325.00. The delay in response from Mr. Lawlor which prompted this decision was approximately 20 minutes during which time Mr. Geisbrecht knew Mr. Lawlor was in a meeting. [ 8 ] Mr.

Lawlor said he spoke to the same male on the phone on both the 26 th and 27 th and that the male identified himself as “Mike”. Mr. Lawlor understood he was communicating with “Mike” both by text and on the phone. [ 9 ] Mr. Lawlor did some online research that evening and found information about Galaxy which led him to conclude that an action should be commenced in this court. On the evening of the 27 th he advised Galaxy he would be commencing litigation. He filed his statement of claim the next day. [ 10 ] On August 18 th Galaxy emailed Ms.

Lawlor a “Pre-Lien and Official Auction Notice” advising their overdue balance was now $1937.31 which included moving charges for the 28 th of July (the day after Galaxy drove away with the second load), a moving late fee of $500.00, storage and a further “future delivery charge” of $498.72 plus storage and interest. [ 11 ] The Lawlors did not receive their property back until after a settlement conference which resulted in an order that their property be delivered back to them forthwith. The transfer of property occurred roadside on March 10 th 2017. Mr.

Lawlor was present and took some photographs of the state of their belongings as they came off the Galaxy truck and were loaded onto the truck of another moving company. He took further photographs after the property was unloaded at their home. The photographs show that some of their furniture and other belongings were significantly damaged or destroyed. Some of the Rubbermaid totes were crushed. Other items had been removed from boxes and were left loose inside the cupboards or drawers of other furniture. Electronic and other items were missing. [ 12 ] Mr.

Lawlor gave evidence about the value of the possessions which were damaged and needed to be replaced.

Evidence for the Defendants [ 13 ] Ms. Epp is the sole Director of Galaxy Mobile Storage Inc. The truck which was used in the move is registered to Galaxy Removals Ltd. Mr. Geisbrecht, using the name Sean Carfrae, is also the sole Director of that company. Mr. Geisbrecht and Ms. Epp are also life partners. [ 14 ] Mr. Geisbrecht was the only witness for the defendants. Ms. Epp elected not to testify. Mr. Geisbrecht said he was solely responsible for the management of the businesses and corporations. With regard to the status of the corporation and the operations of the business, I am deeming Ms.

Epp to have had knowledge of the activities of Mr. Geisbrecht who was acting as her agent. [ 15 ] Mr. Geisbrecht was not present at the Lawlors home or at the storage facility. Although he was made aware immediately that the move was going to be the subject of a legal action he took no steps to document with his movers what happened during the move or specifically what hours were worked. He did not have the staff at the office who were dealing with Mr. Lawlor document their dealings with him. He did not take steps to identify who had been dealing with Mr. or Ms.

Lawlor to ensure the witnesses he would require for trial could be produced. He did not comply with an order that the contact information for the Galaxy movers and staff who dealt with the move be produced. [ 16 ] Mr. Geisbrecht said he was present when the Lawlors possessions were taken off the truck on July 27 th . In his opinion all of their items were filthy and “junk” and much of the furniture was already damaged. However, he did not do an inventory or take photographs or otherwise document the state of their belongings at that time or when they were eventually reloaded in March of 2017. Mr.

Geisbrecht sent a text to the Lawlors on March 10 th 2017 stating: “It won’t be damaged. Your stuff is mostly worthless junk. I looked at it. The filth that you must live in can’t be good for your kids. I can’t believe how dirty you guys are. Maybe see a doctor about your hoarding?” [ 17 ] In his evidence and submissions Mr. Geisbrecht repeatedly suggested that the Lawlors were “hoarders” and their property was junk and filthy.

However, he provided no basis for his view that they were “hoarders” other than what he saw of their property as it was unloaded by Galaxy into storage and re-loaded for return to the Lawlors in March of 2017. The photographs do not support his contention their property was filthy. Nor is there anything I can discern which would support that the items came from the home of people with a hoarding disorder. [ 18 ] Mr. Geisbrecht said that he spoke to Mr. Lawlor at around 6:30 on July 26 th . He asked to be paid for the day. Mr.

Lawlor said he was not going to pay for a move that was half done, and said “You don’t know who the fuck I am. I sue people for fun.” Mr. Geisbrecht admitted that at that time he would not have known how much was owed as he had not reviewed the hours worked with the movers. He said the amount was later worked out with the movers and, although arrangements had already been made with someone in “the office” to complete the move the next day, Mr. Geisbrecht eventually reached an agreement with Mr. Lawlor that Galaxy would indeed return the next day and that Galaxy would require payment by e-transfer or cash.

He did not testify as to when that payment was expected to be made or whether it was for the work done on the 26 th or also for the work that would be done on the 27 th . [ 19 ] Mr. Geisbrecht testified that he was the person who directed the movers to leave without unloading as in his view Mr. Lawlor was not going to pay the extra $325.00 and was in breach of the term of the contract providing Galaxy was to be paid “immediately”. He conceded the truck was not required for any other move that day so there was no pressure on Galaxy to finish the move by 3:30 p.m. [ 20 ] He agreed he was the person texting with Mr.

Lawlor during the move. He also agreed he spoke to Mr. Lawlor by phone both on the 26 th and 27 th . However, he also said he had a protégé named “Mike” who dealt mostly with the movers directly but may have been speaking with Mr. Lawlor. [ 21 ] Mr. Geisbrecht provided some evidence he obtained on-line regarding the value of the damaged or missing goods. He also speculated that the movers who took the items from the Galaxy truck roadside could have caused the damage but took no steps to call any evidence in this regard.

Credibility and Reliability [ 22 ] The Lawlors testified in a forthright, fair manner and were consistent. They were each clearly shocked and distressed at the events which unfolded around their move. They were reasonable and fair-minded in their claim for damages. There was nothing to detract from the credibility or reliability of their evidence. They had not had any prior dealings with either Mr. Geisbrecht, Ms. Epp or their businesses. On a number of points their initial evidence was mistaken but later clarified by reference to notes made on the contract.

I accept their evidence about their dealings with Galaxy and how the move unfolded. I accept their evidence as to the nature and condition of their property and the value they ascribe to their damaged or missing possessions. I also accept their evidence that they are not hoarders. [ 23 ] Mr. Geisbrecht asserted that he and Ms. Epp ran a reputable and reliable business. He suggested he had been involved in “50,000” moves over 20 years and had hundreds of employees. He said his business was long established and reputable. He also said that both businesses were in good standing.

For the reasons that follow I do not accept this to be true. [ 24 ] Mr. Geisbrecht was inconsistent in his evidence as to whether the movers he used were employees. His advertising represents that they are all employees and yet he admitted that the business uses all sub-contractors which explained why the companies under which he purports to do business do not require Worksafe coverage.

However, a document from Worksafe dated July 28 th 2016 states that the Worksafe account for Galaxy Mobile Storage Inc. was cancelled and delinquent in its assessment remittance requirements. [ 25 ] The corporate bank accounts have been attached by Revenue Canada. Mr. Geisbrecht was unable to say whether Galaxy had a GST number. He then said they did have a GST number but he could not provide it. The business has failed to file returns or remit GST collected for at least one year. Galaxy Removals Ltd. has been dissolved as of August 2017.

[ 26 ] Mr. Geisbrecht is the principal of another moving company operating as “Quick and Careful Movers” and admitted that he operates “around 20” web-sites under different business names which funnel moving business to him. The phone number used by Mr. Geisbrecht during the course of his dealings with the Lawlors was in the name of “Sean Carfrae o/a Quick and Careful Moving”. Mr. Geisbrecht uses various combinations of the given names Sean and Courtney and the surnames Geisbrecht and Carfrae. Mr. Geisbrecht was inconsistent as to what his legal name is.

He said he had different names on his driver’s license, social insurance card and with vital statistics. [ 27 ] Mr Geisbrecht’s evidence supports a finding that he and Ms. Epp are, at best, disinterested in the legalities and responsibilities involved in being a Director of a corporate entity or in being in compliance with various regulatory requirements such as Worksafe. Rather, Mr. Geisbrecht was dismissive in his attitude and said any irregularities or failures to comply were the result of his own or their corporate lawyer’s disorganization.

In any event, there is no reflection of any corporate entity in their advertising or on the contract in issue. [ 28 ] There is a representation the business operates from an address on Kingsway. However, that address is for a mail box in a cash store. That same mail box is listed as the Registered and Records office for Galaxy Mobile Storage Inc. In his evidence he said they no longer use that mailbox but have not changed the address with the corporate registry. Mr. Geisbrecht was not forthcoming about where any office for the business was located or any location from which they did business.

I find it more likely than not that there is no “office” or specific premises from which the businesses operate. I also find that Mr. Geisbrecht had the money the Lawlors paid for their move deposited into a personal account which he holds in the name Courtney Geisbrecht. [ 29 ] Based on all the evidence, the spectre has been raised that Mr. Geisbrecht and Ms.

Epp have intentionally set up their business dealings with a view to preventing any customers who are unsatisfied with their services from determining what corporate entity or person is responsible for any damage or excessive billing or withholding of possessions. I suspect that Mr. Geisbrecht uses assumed names and deliberately creates confusion about his own legal identity. I find it more likely than not that Mr. Geisbrecht was identifying himself as “Mike” when dealing with Mr. Lawlor and I accept that he was the only male from Galaxy whom Mr. Lawlor spoke to on the phone.

Given all the circumstances in this matter, I suspect that Mr. Geisbrecht and Ms. Epp have engaged in this conduct to shield themselves from being held accountable for unsavory and manipulative business practices. [ 30 ] Mr. Geisbrecht’s evidence about the events on July 26 th and 27 th was internally inconsistent. He conceded he did not confirm with the movers what hours they had worked before making the demand for payment even though he said he had been in touch with them throughout those days. [ 31 ] Mr.

Geisbrecht took the position that the Lawlors’ property was already damaged when it was loaded by the movers. Or, alternatively, that it was damaged by the movers who received it back from Galaxy. However, he also said he was present when the property was unloaded and later reloaded at the Galaxy premises. When asked why his movers would load badly damaged furniture without making a note of any pre-existing damage or having the owner acknowledge the damage or otherwise documenting it, he said it was probably because all of the Lawlors possessions were damaged and junk. [ 32 ] Mr.

Geisbrecht did not do an inventory of or document the state of the Lawlors’ property at the time it was unloaded. At that time he knew the Lawlors were going to bring an action and, according to him, Mr. Lawlor had told him he “sued people for fun”. Mr. Geisbrecht speculated that Mr. Lawlor set Galaxy up by refusing to pay the extra charges which he somehow knew would result in Galaxy seizing their worthless junk which would in turn allow them to sue, fraudulently, for damages for the loss of higher quality and intact items. I find, on all the evidence, this theory to be preposterous. [ 33 ] Mr.

Geisbreachts did not explain why, given his opinion of the condition and nature of the Lawlors’ property, Galaxy gave notice the property was to be auctioned. This stands in direct contradiction to his evidence in this regard. [ 34 ] I do not accept the evidence of Mr. Geisbrecht regarding the actual time spent by the movers or the calculation of the amount owing for the move. I do not accept his evidence as to the state of the Lawlors’ possessions when they were unloaded into storage by Galaxy. I do not accept that Mr. Lawlor said he “sues people for fun”.

Analysis of Evidence and Findings of Fact [ 35 ] According to the terms which Ms. Lawlor agreed to and as set out on the contract at the time she signed it, the move should have cost $1160.00 based on an 8 hour day. The email confirmation provides there will be charges for “travel time each way” and “7% fuel” although it does not specify what travel time will be charged for – to and from the Galaxy business premise to the move or between the places being moved from and to or both. Neither does it set out how the fuel charge will be calculated.

I find this term to be so vague it is unenforceable. [ 36 ] On the first day, three movers worked for 6.5 hours and two worked for 1.5 hours (rounded up to the half hour). Including GST, this totals $1138.38. The Lawlors should not have been responsible to pay for the mover’s unnecessary return to their residence, after having already made arrangements to finish the move the next day. The total charges for the first day could have been communicated by text or phone and, if necessary, payment made electronically. I accept the evidence of Mr.

Lawlor that there was no request for payment by Galaxy at the end of the first day. [ 37 ] I find the failure to complete the move in one day, as had been agreed to between the parties, was a breach by Galaxy of a fundamental term of the contract. The Lawlors, quite reasonably, accepted this breach on the basis of the representations by Galaxy that the move would be completed the next day. However, in doing so they did not agree, and cannot be seen to have agreed, to pay more for the move than they would have but for the breach by Galaxy. Mr.

Geisbrecht offered no evidence that they did agree to further charges despite those further charges having been occasioned by the breach of contract by Galaxy. [ 38 ] The charges for the second day were for 3 men from 9:30 to 12:15. Including travel time to the storage facility, the charges should have been approximately $500.00. At the time Mr. Geisbrecht began demanding payment of $2545.54, the actual hours worked

amounted to approximately $1700.00. To illustrate the unreasonableness of Mr. Geisbrechts position, I will include the travel timeindicated on the contract (written in after Ms. Lawlor signed the contract) in the amount of $145 for a total of 3 hours. Using thesefigures, the Lawlors owed only $2200.00 and had already paid for at least another 2.5 further hours. Mr. Geisbrecht was clearly in errorin demanding even more money and Mr.

Lawlor had been right to question the amounts being charged. [39] Furthermore, the Lawlors should not have had to pay for two days of travel time as the second day was not part of the initialterms of the contract. Given that the truck had been loaded in three hours and unloading would take less time, the Lawlors had alreadypaid for more hours than would be necessary to unload the truck. A proper accounting of the amount owed should have been based onthe representation that that Galaxy would perform the move in one day.

According to the terms of the contract the Lawlors should onlyhave had to pay a maximum of 10.5 hours, being from 9:00 a.m. to 7:30 p.m., or approximately $1700.00 for the entire move. Mr.Geisbrecht was unable to provide any reasonable explanation for how he had come to the figure he demanded Mr. Lawlor pay (whichwas promptly paid by way of electronic transfer). [40] Mr.

Geisbrecht took the position that “immediate” payment in the contract meant that at any time during the move Galaxycould demand payment of any amount it unilaterally deemed owing and if it was not “immediately” paid the client relinquished all rightsover any property then in Galaxy’s possession. This

interpretation would render that term unconscionable and unenforceable. In thesection of the contract entitled “Claim Settlements” it provides that failure to pay the bill in full within 30 minutes of completion of thejob precludes the client from “filling” (sic) any claims. I find a reasonable

interpretation of the word “immediate” means immediatelyupon completion of the work. [41] Mr. Geisbrecht was in fact paid “immediately” upon demand for payment. He took the decision to direct the truck to leave thestorage with the Lawlors’ possessions because he believed Mr. Lawlor was not going to pay the further $325.00. This was an ill foundedassumption in all the circumstances particularly since the Lawlors had already transferred the amount demanded without an accountingof hours worked and Mr. Lawlor had said he would have his Visa card with him when he went to the storage facility.

I find Mr.Geisbrecht personally and acting on behalf of the corporations fundamentally breached the terms of the contract and did so in bad faith. [42] I accept that Mr. Lawlor said something about a willingness to engage in litigation during the phone call when he was objectingto the amount of the charges. I find Mr. Geisbrecht understood at that time he was dealing with someone who was not prepared to allowMr. Geisbrecht to manipulate the situation to obtain more money. I find Mr. Geisbrecht instructed the movers to leave in a final attemptto extract more money from the Lawlors.

I find it more likely than not that Mr. Geisbrecht, or others at his direction, intentionallydamaged the Lawlors’ possessions in a fit of pique. [43] I find that not only did the defendants breach the terms of the contract by failing to complete the move, they also committedindependent actionable wrongs by wrongfully retaining the claimant’s goods (detinue) and intentionally damaging those goods. Exclusionary Terms [44] Mr. Geisbrecht argued that the defendants were entitled to rely on the exclusionary terms on the contract and that the maximumdamages which could be awarded was $500.00. In Brownjohn v.

Pillar to Post 2003 BCPC 2 the court was dealing with a homeinspector who was found to have been negligent.

With respect to the limitation of liability for damage provided for in the contract thecourt found as follows: Contractual exclusions of liability [85] It was seen in the portions of the contract quoted above that the PTP standard form contract purports to limit PTP's liability fornegligence or other fault to the contract price of $240.00 plus taxes, as well as excluding various aspects of the inspection from anypotential claim. [86] If I gave literal effect to the agreement, then Brownjohn's damages, even in relation to the furnace, would be limited to $256.80. [87] The parties did not refer to case law regarding contractual exclusions of liability.

It may be helpful for me briefly to identifyprinciples of law in that regard. [88] In Hunter Engineering v.

Syncrude Canada Ltd. (SCC), [1989] 1 S.C.R. 426, in the context of a commercialcase involving companies of equal bargaining strength, the Chief Justice adopted a narrow view that contracts should be enforced unlessunconscionable saying, at page 461: There appears to be no sound reason for applying special rules in the case of clauses excluding liability than for other clauses producingharsh results. [89] Having said that, it has been seen in various cases that in particular circumstances such clauses are not enforced. [90] To illustrate the different approaches that can be taken to enforcing exclusion clauses or not enforcing, there exists a helpfulexample of one judge (now Madam Justice Huddart of the Court of Appeal) reaching opposite conclusions in the context of different factpatterns.

So in Tilden Rent a Car Co. v. Chandra [1983] B.C.J. No. 1233, Judge Huddart (as she then was of the County Court) declinedto apply the "stringent, onerous terms" of a car rental contract where the rental company "must have known" that the customer had notread the agreement, and where the rental company had not taken "reasonable measures" to draw the exclusionary language to theattention of the renter. By contrast, in Knowles v. Whistler Mountain Ski Corp. [1991] B.C.J. No. 61, Madam Justice Huddart (then ofthe Supreme Court) enforced exclusionary language in a ski rental agreement.

She found that in the context of that inherently riskyactivity, Ms. Knowles understood that the ski shop was "trying to limit its liability to her." She cited the decision of the Supreme Court of Canada in Dyck v. Manitoba Snowmobile Association (1985) (SCC), 18 D.L.R. (4th) 635 in saying that one can andshould make a distinction between inherently risky sporting activities from situations where "a commercial firm supplies to the publicordinary items of trade and from a commercial point of view dictates the terms on which consumers are to obtain these goods". She wenton to contrast the approach taken by the B.C.

Court of Appeal in Harry v. Kreutziger (1978) (BC CA), 9 B.C.L.R. 166

and Delaney v. Cascade River Holidays (1983) (BC CA), 44 B.C.L.R. 24 in concluding that the real question in suchcases is "whether the transaction, seen as a whole, is sufficiently divergent from community standards of commercial morality that itshould be rescinded." [91] Finally, I refer to the decision of the B.C. Court of Appeal in Zippy Print Enterprises Ltd. v. Pawliuk where Justice Lambert saidfor the Court at paragraph 45: I would apply the principle enunciated by this court in Betker v. Williams (1992) (BC CA), 63 B.C.L.R. (2d) 14 to thecircumstances of this case.

A general exclusion clause will not override a specific representation on a point of substance which wasintended to induce the making of the agreement unless the intended effect of the exclusion clause can be shown to have been broughthome to the party to whom the representation was made by being specifically drawn to the attention of that party, or by beingspecifically acknowledged by that party, or in some other way. [93] I am not suggesting that as a matter of law that result could not be achieved.

Certainly it is the expectation that underlies Mr.Mann's apparent incredulity that anyone would have the temerity to sue PTP. But if PTP wanted to achieve that result, it would need tobring that proposed consequence to the attention of the client in the very clearest of terms.

By way of illustration, I suggest PTP wouldrequire a notice which might be worded something along the lines of: NOTICE TO CLIENT OF EXCLUSION OF LIABILITY - Read carefully [1] Pillar to Post will try to identify material deficiencies in the property you are considering purchasing, but if we fail to identifydeficiencies, or if we reach inaccurate conclusions or draw mistaken assumptions from what we do see, that is your problem, notours. [2] You must clearly understand that beyond the possibility that we might be required to return to you the $240.00 you have paid forthe inspection, we accept absolutely no responsibility for our training, qualifications or competence, nor for the care with whichwe perform the inspection, nor for the results of our inspection and report to you. [3] In short, you must understand that you, not we, assume the risk that our report may be of little value, or even that it maymislead you and cause you financial harm.

Please initial in the space provided, confirming you have read, understood, and accept, the foregoing exclusion of liability…. [45] I adopt Judge Stansfield’s analysis of the law.

I agree that in cases of gross negligence or recklessly or intentionally occasioneddamage, in order for an exclusionary term to be enforceable, the person contracting for services would have to acknowledge, in writing, aspecific term which states that the service provider could engage in that kind of conduct and they would have no meaningful remedy. [46] The only evidence is that the exclusionary terms were not brought to the attention of Ms. Lawlor when she signed the contract.

However, even if these terms had been brought to her attention, the exclusionary terms would not protect the defendants where, as I havefound to be the case here, there has been intentional or grossly negligent destruction of property by the person or entity asking to rely onthe exclusionary terms. Exceptions to Liability under the Motor Vehicle Act and Regulations [47] Mr. Geisbrecht also argued that the contract was a “bill of lading” and therefore the claimants were somehow barred from beinggranted damages.

However, the contract falls well short of compliance with the provisions of the Motor Vehicle Act or Regulations. Asa result, the defendants are not entitled to rely on the exceptions to liability set out in these Regulations. [48]

Section 237 (

a) and (

b) of the Act provide: "business vehicle" means a motor vehicle (a)that is operated at any time on a highway by, for or on behalf of any person who charges or collects compensation for thetransportation of freight in or on the motor vehicle, but only if (i)the operation is carried on solely under a limited number of special or individual contracts or agreements, and (ii)the motor vehicle is not available for use by the general public, (c)that is operated at any time on a highway by, for or on behalf of any person who charges or collects compensation for thetransportation of freight in or on the motor vehicle, S. 37.39 of the Regulations (Part 7) provides: (2)Subject to this Part, if household goods are accepted for shipment by or on behalf of a carrier who operates a business vehicle withinthe meaning of

section 237 (

a) or (

c) of the Act, the carrier must, at the time of that acceptance, issue or cause to be issued a bill of ladingin accordance with the following requirements: (a)a bill of lading issued under this subsection must show the following: (i)the name and address of the consignor (shipper); (ii)the date of the shipment; (iii)the originating point of the shipment;

(iv)in a conspicuous place, the name of the original contracting carrier and the carrier's telephone number; (v)the name of connecting carriers, if any; (vi)in a conspicuous place, the name of the destination agent, if different from the original contracting carrier, and that agent's telephone number; (vii)the name, address and telephone number of the consignee (receiver of goods); (viii)the destination of the shipment; (ix)an inventory of the goods comprising the shipment, which inventory must be attached to, and become part of, the bill of lading; (b)a bill of lading issued under this subsection must also contain the following: (i)a provision stipulating whether the goods are received in apparent good order and condition, except as noted on the inventory; (ii)despite subparagraph (i), a statement in conspicuous form indicating that the signature of the consignee for receipt of goods does not preclude a future claim for loss or damage made within the time limit set out in the bill of lading; (iii)a space to show the declared value of the shipment; (iv)a space or spaces to show the actual amount of freight and all other charges to be collected by the carrier; (v)a statement to indicate that the uniform conditions of carriage apply; (vi)a space or spaces to note any special services or agreements between the contracting parties; (vii)a space to indicate date or time period agreed on for delivery; (viii)a statement in conspicuous form to indicate that the carrier's liability is limited by a term or condition of carriage; (ix)a space for the signature of the consignor; (c)a bill of lading issued under this subsection must be signed in full by the consignor, or the consignor's agent, and the original contracting carrier, or the carrier's agent, and must contain or incorporate by reference all the following conditions of carriage: Specified Conditions of Carriage — Household Goods Liability of carrier

Article 1: The carrier of the goods that are described in this bill of lading is liable for any loss of or damage to goods accepted by the carrier or the carrier's agent, except as provided in this bill of lading. Liability of originating and delivering carriers

Article 2: If a shipment is accepted for carriage by more than one carrier, the original contracting carrier and the carrier who assumes responsibility for delivery to the consignee (the "delivering carrier"), in addition to any other liability under this bill of lading, are, if the goods are lost or damaged while they are in the custody of any other carrier to whom the goods are or have been delivered, jointly and severally liable with that other carrier for that loss or damage. Recovery from connecting carrier

Article 3: The original contracting carrier or the delivering carrier, as the case may be, is entitled to recover from any other carrier to whom the goods are or have been delivered the amount of loss or damage that the original contracting carrier or delivering carrier, as the case may be, may be required to pay under this bill of lading resulting from any loss of or damage to the goods while they were in the custody of such other carrier. Remedy by consignor or consignee

Article 4: Nothing in

Article 2 or 3 deprives a consignor or a consignee of any rights the consignor may have against any carrier. Exception from liability

Article 5: The carrier is not liable for the following: (

a) loss, damage or delay to any of the goods described in this bill of lading caused by an Act of God, the Queen's or public enemies, riots, strikes, a defect or inherent vice in the goods, the act or default of the consignor, owner or consignee, authority of law or quarantine; (

b) unless caused by the negligence of the carrier or the carrier's agent or employee: (

i) damage to fragile articles that are not packed and unpacked by the contracting carrier or by that carrier's agent or employee(s); (ii) damage to the mechanical, electronic or other operations of radios, phonographs, clocks, appliances, musical instruments and other equipment, irrespective of who packed or unpacked such articles, unless servicing and preparation was performed by the contracting carrier or by that carrier's agent or employee(s); (iii) deterioration of or damage to perishable food, plants or pets;

(iv) loss of contents of consignor packed articles,unless the containers used are opened for thecarrier's inspection and articles are listed on thisbill of lading and receipted for by the carrier;(

c) damage to or loss of a complete set or unit when only part of such set is damaged or lost, inwhich event the carrier is only liable for repair or recovering of the lost or damaged piece orpieces;(

d) damage to the goods at place or places of pick-up at which the consignor or the consignor'sagent is not in attendance;(

e) damage to the goods at place or places of delivery at which the consignee or the consignee'sagent is not in attendance and cannot give receipt for goods delivered.For the purpose of paragraph (b), the burden of proving absence of negligence is on the carrier.DelayArticle 6: (

a) At the time of acceptance of the contract, the original contracting carrier must provide theconsignor with a date or time period within which delivery is to be made. Failure by the carrierto effect delivery within the time specified on the face of the bill of lading renders the carrierliable for reasonable food and lodging expenses incurred by the consignee.(

b) Failure by the consignee to accept delivery when tendered within the time specified on the billof lading renders the consignee liable for reasonable storage in transit, handling and redeliverycharges incurred by the carrier.Routing by the carrierArticle 7: If, because of physical necessity, the carrier forwards the goods by a conveyance that is not a licensed for hire vehicle,the liability of the carrier is the same as though the entire carriage were by licensed for hire vehicle.Stoppage in transitArticle 8: If goods are stopped or held in transit at the request of the party entitled to so request, the goods are held at the risk ofthat party.ValuationArticle 9: Subject to

Article 10, the amount of any loss or damage for which the carrier is liable, whether or not the loss ordamage results from negligence of the carrier or the carrier's employees or agents, is to be computed on the basis of thevalue of the lost or damaged article(

s) at the time and place of shipment.Maximum liabilityArticle 10: (

a) The amount of any loss or damage computed under

Article 9 must not exceed the greater of(

i) the value declared by the shipper, or(ii) $4.41 per kilogram computed on the total weightof the shipment,provided that if the consignor, in writing, releases the shipment to a value of $1.32 per kilogram per

article or less theamount of any loss or damage computed under

Article 9 must not exceed such lower amount.(

b) If paragraph (a) (

i) or (ii) applies, additional charges to cover the additional coverage over$1.32 per kilogram per

article must be paid by the consignor. Consumer Protection Act [49] The provisions of the Business Practices and Consumer Protection Act were addressed in the course of the proceedings. I havedetermined that the contract in issue is not a direct sales contract. However, given the evidence and findings in this matter there maywell have been a remedy available to the Lawlors on the basis that the defendants engaged in Deceptive or Unconscionable Acts orPractices as defined in the Act. Personal Liability [50] I find Mr. Geisbrecht and Ms.

Epp failed in their duties as Directors of or agents for the corporations they now seek to haveprotect them from personal liability. One company has been dissolved and the other did not maintain a proper Registered or RecordsOffice. Mr. Geisbrecht had what he says was “corporate income” deposited directly to his personal account, specifically the payment made by the Lawlors on July 27th. [51] Most significantly, they knowingly failed to include reference to any corporate entity in their advertising or on the contractcontrary to s. 27 of the Business Corporations Act. In the result, Mr. Geisbrecht and Ms.

Epp are not entitled to rely on any limitation ofliability which might have existed had they complied with the provisions of the Act. [52] A similar finding was made by Judge Shaw in Grenier v. Galaxy Mobile Storage Inc. Sean Geisbrecht and Gillian Epp, (unreported) September 11th 2018, Kelowna Registry No. 108821. In that matter an antique grand piano suffered $14,000.00 damageduring a move Mr. Geisbrecht was directly involved in. Although the owner of the piano paid $280.00 for specific insurance for thepiano it was found that no such insurance had been provided by Galaxy or Mr. Geisbrecht. Ms.

Epp was not found personally liable inthat matter but it does not appear there was evidence before that court concerning the failure of the corporation for which she is soledirector to comply with the Business Corporations Act. Punitive Damages [53] Punitive Damages may be awarded in actions arising from a breach of contract if the court finds that an independent actionablewrong exists. Such damages may be awarded where there is conduct which constitutes a marked departure from ordinary standards ofdecency or is malicious or high handed. (see: Vorvis v. ICBC (SCC), [1989] 1 SCR 1085 and Whiten v.

Pilot Insurance2002 SCC 18) [54] In this matter, I have found the defendants to have engaged in unconscionable and extortionate business practices by detaining

the claimant’s possessions in bad faith for the purpose of extracting excessive compensation. I find they destroyed and damaged the claimant’s property intentionally. I also find Mr. Geisbrecht has engaged in vexatious conduct in relation to the torts committed by all the defendants by repeatedly alleging the claimants suffered from a hoarding disorder without any evidentiary foundation. [ 55 ] Punitive damages in this matter will serve the rational purpose of deterring the defendants from engaging in such conduct in the future, denouncing their conduct and deterring others from engaging in similar conduct.

In all the circumstances, I find it is appropriate to award punitive damages to the Lawlors. Calculation of Damages [ 56 ] The Lawlors are entitled to be refunded for all moving expenses in excess of $1,138.38 which represents the actual time spent on the first day as I have calculated it. They paid a total of $2,545.54 and so are entitled to be repaid $1,407.16.

They are also entitled to be compensated for the moving costs associated with the recovery of their goods in the spring of 2017 in the amount of $739.20 . [ 57 ] I accept the claimant’s evidence of the replacement value of the furniture and other items which were missing or damaged. The following is a list with rounded replacement values. I will discount those values by 25% to reflect that the items were used. The photographs show that the furniture was in otherwise good condition and I find any further reduction is not warranted. I have not discounted the computer or tablet as they were new.

Neither have I discounted the two Robert Bateman numbered prints as they could reasonably be expected to retain their value.

Discounted Used Household Items Glassware $450.00 Dresser $650.00 Office desk $745.00 File cabinet $1,100.00 Glass coffee table $1,500.00 Glass dining table $5,000.00 Dining chair set $2,400.00 Hockey equipment $800.00 Christmas décor $290.00 Storage boxes $270.00 Toys $60.00 Total $13,265.00 Less 25% reduction -$3,316.00 Damages to be awarded $9,949.00 Replacement Costs Computer $599.00 Tablet $349.00 Two Batemen Prints $3,885.00 Total $4,833.00 Compensation for damage to custom made solid oak credenza Calculated as 10% of price paid of $16,000.00 ---- $16,000.00x10% Total $1,600.00 Total damages = $18,528.36 Punitive Damages - I am imposing $4,500.00 in punitive damages which represents 25% of the total damages awarded.

Rule 20 Penalty As referred to above, Mr. Geisbrecht took no steps to document the events at the time they occurred, did not take steps to maintain contact with the necessary witnesses and did not properly prepare for trial. In the result, the defendants were never in a position to meet the claim made and yet persisted through trial without evidence to support the positions taken. I am imposing a 10% penalty in the amount of $1,853.00 .

Fees and Expenses Filing Fees $156.00 Service Fees $40.00 Corporate Search Fees $54.60 Total $250.60 Total Judgement = $25,131.96 [ 58 ] The Counterclaim filed by the Defendants is dismissed.

______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia