Background of the Class Action
The British Columbia Court of Appeal recently declined Airbnb’s request to stay a class proceeding that alleges the company operates rental services in Canada without the required real estate and consumer protection licenses. The class action, initiated in April 2022 and certified by the B.C. Supreme Court, challenges Airbnb Inc. and related entities, seeking a refund of commissions and disgorgement of profits linked to allegedly unlicensed accommodation rentals.
Airbnb’s Arguments and the Court’s Analysis
Airbnb argued that continuing discovery during the appeal would cause them irreparable harm, especially considering the anticipated discovery costs would be unrecoverable under section 37 of the Class Proceedings Act. They also raised concerns that participating in discovery could be construed as accepting the B.C. court’s jurisdiction, potentially encouraging further litigation against them.
Justice Karen Horsman applied the Supreme Court of Canada’s test from RJR-MacDonald Inc. v. Canada (Attorney General) to decide whether to grant a stay. While Airbnb met the threshold of a serious question to be tried, the court found no sufficient evidence of irreparable harm. The judge noted that the discovery obligations before the expected determination of the appeal in April 2026 would mostly consist of document production. She emphasized that unrecoverable discovery costs seldom satisfy the “irreparable harm” criterion in this context.
Regarding the risk of increased litigation due to perceived jurisdictional acceptance, the court highlighted the public record showing Airbnb’s continued jurisdictional challenges. In the judge’s view, refusing the stay posed no realistic risk of exposing Airbnb to claims it would not have faced before the appeal’s resolution.
Balancing the Interests
Justice Horsman weighed the inconvenience to Airbnb against the prejudice to the class representative if discovery were fully paused. She concluded that halting proceedings would unfairly prejudice the respondent and would not serve the balance of justice.
Implications for Ontario Legal Practice
Although the decision arises from British Columbia courts, it offers notable guidance for
Ontario practitioners and litigants navigating class proceedings. The ruling underscores the courts’ reluctance to grant stays of class actions merely due to discovery costs or pending appeals absent exceptional circumstances.
Ontarians engaged in class actions should be mindful that discovery obligations will likely proceed even while appellate issues remain outstanding. This environment encourages proactive management of discovery processes to minimize unnecessary expense and delay.
Conclusion
The B.C. Court of Appeal’s decision in Airbnb Inc. v. Ware, 2025 BCCA 298 reinforces the principle that class actions will generally continue to move forward without interruption, even amid ongoing appeals. It signals to defendants the need to prepare for full participation in discovery while preserving appellate rights.
For Ontario litigators, this case highlights the importance of balancing procedural costs with the overriding goal of efficient and fair dispute resolution in class proceedings.
For more information on Flaherty McCarthy’s Class Proceedings work, click here.
