BC Court Of Appeal Finds Statutory Complexity, Unfocused Common Issues Weigh Against Certification: Airbnb v Ware, 2026 BCCA 110

In Airbnb, Inc. v. Ware, 2026 BCCA 110, the British Columbia Court of Appeal set aside a decision certifying a class proceeding and remitted the matter back for reconsideration, finding that the preferability analysis failed to grapple with the complexity of the proposed claim. The Court of Appeal was also critical of the proposed common issues, which were overly general and disconnected from the pleaded claims.

Background

The plaintiff alleged that Airbnb operates as a real estate agent, travel agency service, and money services business without a license, contrary to provincial and federal legislation. The plaintiff alleged that those breaches invalidated Airbnb guests’ contracts. The plaintiff claimed compensation for unjust enrichment, breach of contract, and remedies under provincial consumer protection acts.

The chambers judge certified the class action and dismissed the defendants’ jurisdictional objections in Ware v Airbnb, Inc., 2024 BCSC 2240. The Court of Appeal set aside that decision and remitted the application back to the certification judge for reconsideration.

Complexity and preferability

The Court of Appeal held that resolving the defendants’ alleged breaches would demand a complex analysis of more than 20 statutory schemes, which had not been adequately considered in the certification analysis.

Certification decisions must account for the foreseeable complexities of the litigation, not merely defer them to another day (emphasis added):

203 To resolve common Question 6, the judge will have to conduct a detailed analysis of the provisions of 20 statutes and regulations — only three of which are enacted in British Columbia — and their application to the appellants' activities. The statutes are largely regulatory in nature. Many assign investigation and enforcement powers to specialized statutory decision makers, whose decisions, in turn, are subject to statutory rights of appeal to other specialized tribunals. …

…

209 My point is simply that the preferability analysis must account for the complexities presented by this case, particularly its breadth and the fact that no regulatory action has been taken against the appellants in any jurisdiction to date. The case, as certified, 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, as applied to the appellants' activities. The application for certification required the judge to engage with these complexities in deciding whether a class proceeding was the preferable procedure for resolving the common issues in this context.

The Court of Appeal also criticized the use of broadly framed common issues, cautioning that “broad framing of [a question] should not mask the magnitude of the task to be undertaken by the judge at the common issues trial.

In this case, the common issues trial judge would be asked to interpret the licensing and regulatory requirements of numerous statutory schemes across Canada. This could lead to inconsistent results if, for example, the trial judge were to find that a certain license or approval was required, but the applicable regulators disagreed. This type of complexity – along with the existence of applicable regulatory regimes and oversight mechanisms – is relevant to the question of whether a class action is the preferable procedure. Here, that complexity was not adequately taken into account at the certification stage.

Imprecise common issues disconnected from pleaded claims

The Court of Appeal also held that answering the proposed common issues would not resolve the causes of action pleaded. For instance, the proposed issues asked whether the defendants complied with the federal and provincial legislation, but did not address whether a breach voided the contracts. As a result, the court would be asked to “leap” from a finding about a statutory breach to remedies, without addressing any of the intermediate steps in the analysis needed to establish liability for the pleaded causes of action.

The proposed remedy issues were also problematic. The primary remedy question lumped together “damages, restitution, disgorgement and/or accounting of profits” without connecting the different remedies sought to the distinct causes of action entitling the plaintiff to those remedies. The Court of Appeal held that this failure was “not a minor quibble” and would stand in the way of a principled analysis of available remedies.

The Court of Appeal’s decision underlines the importance of clear common issues that are connected to the pleaded causes of action and that will facilitate a focused common issues trial.

Jurisdiction must be established vis-à-vis each defendant

The Court of Appeal found the judge failed to undertake a separate jurisdictional analysis for Airbnb and Airbnb Canada, as required, and instead dealt with the two entities as if they were a single company. The Court of Appeal reaerated that, in cases with multiple defendants, jurisdiction must be examined in relation to each defendant. The Court of Appeal concluded that the court had jurisdiction over one Airbnb entity (which contracted with Canadian guests during the relevant period), but not over another Airbnb entity (which provided marketing services but otherwise had no connection to BC).

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