Executive Summary: Key Legal and Evidentiary Issues

• Airbnb entities appealed both the certification of a class proceeding and the dismissal of jurisdictional challenges brought by Airbnb, Inc. and Airbnb Canada Inc. in British Columbia.

• The respondent alleged that Airbnb operated as unlicensed real estate agents, travel agents, and money services businesses in contravention of numerous federal and provincial statutes across Canada.

• Territorial jurisdiction over Airbnb, Inc. was upheld based on its undisputed pre-June 2014 contracts with Canadian guests, while Airbnb Canada's claim was dismissed for lack of a real and substantial connection to the proceeding.

• Certified common issues were found to be fundamentally flawed, as they failed to address the elements of the pleaded causes of action for unjust enrichment and breaches of consumer protection legislation.

• An earlier application by Airbnb to stay the proceedings pending appeal was denied because irreparable harm was not demonstrated and the balance of convenience favoured the respondent.

• The preferable procedure analysis was held to be deficient, as the chambers judge did not adequately grapple with the complexity of adjudicating licensing requirements under at least 20 distinct statutory schemes in a national class action.

The facts of the case
Margot Ware, the respondent, filed her first notice of civil claim on April 14, 2022, against six Airbnb entities in the Supreme Court of British Columbia. The proceeding was brought under the Class Proceedings Act, R.S.B.C. 1996, c. 50. Ms. Ware alleged that the Airbnb group of companies—which operates a global online platform allowing travellers ("Guests") to connect with individuals who have accommodations to offer for rent ("Owners")—had been providing accommodation rental services in Canada without obtaining the licences or registrations required under various provincial and federal statutes. Specifically, the respondent claimed that Airbnb functioned as a real estate agent, travel agent, and money services business, all without proper authorization. Ms. Ware deposed that she had used the Airbnb platform to reserve accommodations for many years, including to rent a property in Penticton, British Columbia, in August 2021.
The Airbnb group consists of several entities with distinct roles. Since June 30, 2014, Airbnb Ireland Unlimited Company has been the primary entity contracting with Canadian guests under the Terms of Service, while Airbnb Payments UK Ltd. contracts with Canadian guests in relation to the Payment Terms. Prior to that date, Airbnb, Inc.—a company incorporated under the laws of Delaware and parent company of the Airbnb group—contracted directly with Canadian guests but has not done so since June 30, 2014. Airbnb Canada Inc., a company incorporated in New Brunswick with a head office in St. John, is a wholly-owned subsidiary of Airbnb Ireland. It provides sales and marketing and business support services to Airbnb Ireland under a service agreement and does not contract with guests or owners in Canada, nor does it operate the Airbnb Platform in Canada.

The causes of action and relief sought
The respondent's amended notice of civil claim, filed July 17, 2023, pleaded three causes of action: unjust enrichment, breach of provincial consumer protection statutes (primarily British Columbia's Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2), and breach of contract. All three were grounded in the allegation that Airbnb's contravention of the regulatory prohibitions—referred to collectively as the Real Estate Services Prohibition, the Travel Agent Services Prohibition, and the MSB Prohibition (the "Prohibitions")—rendered its activities unlawful. The respondent sought recovery of the Travellers Service Fees charged to guests and the Accrued Interest earned by Airbnb on monies it receives from guests until such time as the monies are remitted to the Owner or the relevant tax authority. The claim in contract was pleaded in the alternative and only against Airbnb Ireland and Airbnb UK. Remedies sought included restitution, disgorgement, nominal damages for breach of contract, punitive damages, and a permanent injunction.

The Terms of Service at issue
A key contractual clause in dispute was Clause 16 of Airbnb's Terms of Service, titled "Airbnb's Role," which stated that Airbnb offered users the right to use a platform enabling members to publish, offer, search for, and book host services. The clause provided that users "acknowledge that Airbnb has the right, but does not have any obligation, to monitor the use of the Airbnb Platform and verify information provided by our Members," and listed actions Airbnb may take including to "comply with applicable law or the order or requirement of a court, law enforcement, or other administrative agency or governmental body." The appellants relied on this language to argue that Airbnb made no contractual commitment to comply with applicable laws, including the Prohibitions. The Court of Appeal found this quotation from the Terms of Service was incomplete and noted the language the appellants relied on was arguably restricted to Airbnb's role in relation to monitoring the use of the Airbnb Platform and the verification of information provided by members. The provision did not, at least on its face, appear intended to generally absolve Airbnb from the requirement that it comply with applicable laws, including laws requiring it to obtain regulatory licences or registrations. The Terms of Service also stated that Airbnb was not a travel agent or real estate broker, which the appellants argued negated any consumer protection claims. However, the court found this statement did not answer the allegation that it was capable of misleading consumers—it might be read as a representation that Airbnb does not require a licence, or it may be capable of deceiving a consumer if, in fact, the appellants were performing the services of a travel agent and real estate broker but asserting otherwise.

The lower court decision and the stay application
On December 11, 2024, the chambers judge released reasons for judgment in Ware v. Airbnb, Inc., 2024 BCSC 2240, dismissing the jurisdictional challenges by Airbnb, Inc. and Airbnb Canada, and granting certification of the action as a class proceeding. The appellants filed a notice of appeal on January 10, 2025, and an amended notice of appeal on June 17, 2025. The parties attended a mediation on April 15 and 16, 2025, which was not successful. They subsequently attended a judicial management conference on June 10, 2025, to settle the terms of the draft order, and the chambers judge delivered her judgment in the form of an order at a further conference on June 17, 2025, which included approval of a litigation plan for the class proceeding.
On July 31, 2025, Justice Horsman of the Court of Appeal, sitting in chambers, dismissed the appellants' application for a stay of proceedings pending appeal in Airbnb Inc. v. Ware, 2025 BCCA 298. Applying the three-part test from RJR-MacDonald v. Attorney General (Canada), [1994] 1 S.C.R. 311, the court found that while the appellants met the low threshold for merits—the appeal was neither frivolous nor vexatious—they failed to demonstrate irreparable harm. The appellants argued that requiring Airbnb, Inc. and Airbnb Canada Inc. to participate in the litigation process would give a false impression that they had attorned to jurisdiction, and that they would be required to participate in a costly discovery process with costs unrecoverable due to the operation of s. 37 of the Class Proceedings Act. The court rejected both arguments, noting there was a public record that the two entities disputed jurisdiction and had appealed, and that the appellants' concern about third parties assuming attornment was entirely speculative. As for discovery costs, the court noted that realistically, the only discovery step that might be expected to occur before the anticipated appeal judgment by the end of April 2026 was the service of document lists and exchange of documents in electronic form, and that it was only in the "very rare case" that unrecoverable discovery costs in a class proceeding rise to the level of irreparable harm. The balance of convenience also favoured the respondent, as a forced delay of up to nine months would cause prejudice to the presumptive entitlement of class members to proceed with the class action rather than wait for the end of an appeal process that may or may not change the outcome.

The appeal decision on jurisdiction
On March 19, 2026, the Court of Appeal issued its substantive decision in Airbnb, Inc. v. Ware, 2026 BCCA 110, allowing the appeal in part. On the jurisdictional issues, the court upheld the chambers judge's finding that British Columbia had territorial jurisdiction over Airbnb, Inc. Airbnb, Inc. conceded that prior to June 30, 2014, it contracted with Canadian guests in relation to the provision of the Accommodation Rental Services. The court rejected Airbnb, Inc.'s assumption that an action can be divided up into time periods for the purpose of determining territorial jurisdiction over discrete aspects of a proceeding, finding that no authority was offered in support of such an approach. The court also dismissed the forum non conveniens argument in favour of California, noting that Airbnb, Inc. had made no submissions as to the scope of the choice-of-law provision in the Terms of Service or its impact on the substantive issues in dispute, had not pointed to any material differences between the relevant laws of California and British Columbia, and had not brought an application to stay the proceeding under the Arbitration Act despite the existence of arbitration and class action waiver clauses in the pre-June 2014 Terms of Service.
However, the court reached a different result for Airbnb Canada. Applying the Supreme Court of Canada's guidance in Sinclair v. Venezia, 2025 SCC 27—which emphasized that jurisdiction must be examined from the perspective of each defendant rather than in light of the factual and legal situation writ large—the court found the chambers judge had erred by largely not distinguishing between Airbnb, Inc. and Airbnb Canada but rather dealing with the two companies together as if they were a single entity. The respondent failed to establish a good arguable case that any of the connecting factors listed in s. 10 of the Court Jurisdiction and Proceedings Transfer Act applied to Airbnb Canada. Airbnb Canada was not a party to any of the contracts in issue, there was no allegation that it was carrying on business in British Columbia, and there was no pleading or evidence that it carried out any activity in British Columbia relevant to the claims beyond providing marketing services under its agreement with Airbnb Ireland.

The appeal decision on certification
On the certification issues, the Court of Appeal upheld the chambers judge's finding that the pleadings disclosed viable causes of action for unjust enrichment, breach of the BPCPA, and breach of contract. The court agreed that the questions of statutory interpretation raised by the appellants could not properly be resolved under s. 4(1)(a) of the Class Proceedings Act, as the various regulatory schemes were complex and their application to Airbnb was not so straightforward that the answer was plain and obvious. Notably, the respondent clarified on appeal that she did not intend to advance statutory illegality as a stand-alone cause of action. The court called this a sensible acknowledgment given that breach of a statute is not a cause of action in Canadian law.
Despite upholding the cause of action findings, the court identified fundamental problems with the certified common issues. The common questions as certified were disconnected from the elements of the pleaded causes of action, failing to address necessary stepping stones such as whether statutory illegality rendered the contracts void, whether there was a juristic reason for the appellants' enrichment, and whether the appellants were a "supplier" within the meaning of the BPCPA. The common issues as certified would effectively require the judge to leap from a finding that the appellants breached the Prohibitions to consideration of damages without any intervening steps. The remedies question improperly lumped together damages, restitution, disgorgement, and accounting of profits without any differentiation of the source of the remedy. The court further noted that disgorgement did not appear to be a viable remedy in this case, as it is not a remedy for unjust enrichment but rather a distinct remedy that may be available for certain other causes of action such as breach of fiduciary duty.
The court also found the chambers judge's analysis of the preferable procedure requirement was deficient. The chambers judge's entire analysis of preferability was contained in two substantive paragraphs. She had dismissed the appellants' concerns about complexity by noting there were now "far fewer" statutory schemes at issue, and had concluded the regulatory process was not a viable avenue for recovery because the British Columbia Superintendent of Real Estate had confirmed that Airbnb was not subject to the applicable regime. The Court of Appeal held that neither reason withstood scrutiny. The reduction from 26 to 20 statutory schemes did not answer the question of whether a class proceeding was a fair, efficient, and manageable method of advancing the claims. The fact that one regulator disagreed with the respondent's position did not render the regulatory process irrelevant; rather, it arguably weighed against a class proceeding as the preferable procedure, since the appellants may end up bound by a permanent injunction requiring them to obtain a licence or registration when compliance is impossible because the regulator will not provide one. The court emphasized that the case would require the trial judge to make first-instance decisions regarding the licensing and registration requirements of at least 20 different statutes, enacted in jurisdictions across Canada, administered by a diverse array of regulators, none of whom had taken enforcement action against Airbnb to date.

The ruling and outcome
The Court of Appeal, in a unanimous decision written by Justice Horsman and concurred in by Justices Iyer and Edelmann, allowed the appeal in part. Airbnb, Inc.'s appeal from the order dismissing its jurisdictional objection was dismissed, affirming that British Columbia courts have territorial competence over it. Airbnb Canada Inc.'s appeal was allowed and the claim against it was dismissed. The appellants' appeal from the certification order was allowed and the certification order was set aside. The matter was remitted to the chambers judge to consider whether the requirements of ss. 4(1)(c) and (d) of the Class Proceedings Act are met in light of the Court of Appeal's reasons. No specific monetary amount was awarded or ordered in either decision, as the case remains unresolved on the merits and the certification question has been sent back to the lower court for reconsideration.