IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[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.

[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.

[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:

[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.

[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”.

[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 time indicated on the contract (written in after Ms. Lawlor signed the contract) in the amount of $145 for a total of 3 hours.  Using these figures, the Lawlors owed only $2200.00 and had already paid for at least another 2.5 further hours.  Mr. Geisbrecht was clearly in error in 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 initial terms of the contract.  Given that the truck had been loaded in three hours and unloading would take less time, the Lawlors had already paid for more hours than would be necessary to unload the truck.  A proper accounting of the amount owed should have been based on the representation that that Galaxy would perform the move in one day.  According to the terms of the contract the Lawlors should only have 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 (which was 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 Galaxy could demand payment of any amount it unilaterally deemed owing and if it was not “immediately” paid the client relinquished all rights over any property then in Galaxy’s possession.  This interpretation would render that term unconscionable and unenforceable.  In the section of the contract entitled “Claim Settlements” it provides that failure to pay the bill in full within 30 minutes of completion of the job precludes the client from “filling” (sic) any claims.  I find a reasonable interpretation of the word “immediate” means immediately upon 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 the storage with the Lawlors’ possessions because he believed Mr. Lawlor was not going to pay the further $325.00.  This was an ill founded assumption in all the circumstances particularly since the Lawlors had already transferred the amount demanded without an accounting of 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 objecting to the amount of the charges.  I find Mr. Geisbrecht understood at that time he was dealing with someone who was not prepared to allow Mr. Geisbrecht to manipulate the situation to obtain more money.  I find Mr. Geisbrecht instructed the movers to leave in a final attempt to extract more money from the Lawlors.  I find it more likely than not that Mr. Geisbrecht, or others at his direction, intentionally damaged 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 committed independent actionable wrongs by wrongfully retaining the claimant’s goods (detinue) and intentionally damaging those goods.

[44]        Mr. Geisbrecht argued that the defendants were entitled to rely on the exclusionary terms on the contract and that the maximum damages which could be awarded was $500.00.  In Brownjohn v. Pillar to Post 2003 BCPC 2 the court was dealing with a home inspector who was found to have been negligent.  With respect to the limitation of liability for damage provided for in the contract the court found as follows:

[45]        I adopt Judge Stansfield’s analysis of the law.  I agree that in cases of gross negligence or recklessly or intentionally occasioned damage, in order for an exclusionary term to be enforceable, the person contracting for services would have to acknowledge, in writing, a specific 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 have found to be the case here, there has been intentional or grossly negligent destruction of property by the person or entity asking to rely on the exclusionary terms. 

[47]        Mr. Geisbrecht also argued that the contract was a “bill of lading” and therefore the claimants were somehow barred from being granted damages.  However, the contract falls well short of compliance with the provisions of the Motor Vehicle Act or Regulations.  As a 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:

[49]        The provisions of the Business Practices and Consumer Protection Act were addressed in the course of the proceedings.  I have determined that the contract in issue is not a direct sales contract.  However, given the evidence and findings in this matter there may well have been a remedy available to the Lawlors on the basis that the defendants engaged in Deceptive or Unconscionable Acts or Practices as defined in the Act.

[50]        I find Mr. Geisbrecht and Ms. Epp failed in their duties as Directors of or agents for the corporations they now seek to have protect them from personal liability.  One company has been dissolved and the other did not maintain a proper Registered or Records Office.  Mr. Geisbrecht had what he says was “corporate income” deposited directly to his personal account, specifically the payment made by the Lawlors on July 27^th.

[51]        Most significantly, they knowingly failed to include reference to any corporate entity in their advertising or on the contract contrary to s. 27 of the Business Corporations Act.  In the result, Mr. Geisbrecht and Ms. Epp are not entitled to rely on any limitation of liability 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 11^th 2018, Kelowna Registry No. 108821.  In that matter an antique grand piano suffered $14,000.00 damage during a move Mr. Geisbrecht was directly involved in.  Although the owner of the piano paid $280.00 for specific insurance for the piano it was found that no such insurance had been provided by Galaxy or Mr. Geisbrecht.  Ms. Epp was not found personally liable in that matter but it does not appear there was evidence before that court concerning the failure of the corporation for which she is sole director to comply with the Business Corporations Act.

[53]        Punitive Damages may be awarded in actions arising from a breach of contract if the court finds that an independent actionable wrong exists.  Such damages may be awarded where there is conduct which constitutes a marked departure from ordinary standards of decency or is malicious or high handed. (see: Vorvis v. ICBC 1989 CanLII 93 (SCC), [1989] 1 SCR 1085 and Whiten v. Pilot Insurance 2002 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.

[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. 

[58]        The Counterclaim filed by the Defendants is dismissed.