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Meena Alnajar is an听IPilogue听Writer, IP Innovation Clinic Fellow,听and a 2L JD Candidate at听Osgoode听Hall Law School
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On February 11, 2022, a class action lawsuit against for double ticketing settled for $6 million dollars. People who used Airbnb for the first time since October 2015 may be eligible for up to $45 in credit. Vancouver resident filed the class action in 2017 on the basis that Airbnb appeared to charge Lin $122 a night for what he booked as a $108 night on the app. The act of charging a consumer the higher of two or more prices is known as and it is a criminal offence in Canada under Section 54 of the Competition Act. This class action signified that parties can be found guilty of double ticketing even in online spaces.
Double ticketing in Canadian law is described as charging a consumer the of two or more prices when it is expressed in the following ways: on a product (its wrapper or container), on anything attached to the product including anything on which the product is mounted for display or sale, on an in-store or other point-of-purchase display or advertisement. Online spaces, such as applications, are not explicitly included in that list as this section was first enacted in . The Section intends to prevent consumers from being by the prices they are charged. Interestingly, prices that are not in-store or at the point of purchase, such as newspaper ads, . This exclusion could give way to online sellers having different prices listed online, as these online prices appear to be neither in-store nor definitively at a point-of-purchase. The Airbnb class action helps clarify how courts may contemplate a Section 54 offence for online retailers.
In its initial arguments, claimed that double ticketing did not apply because the two prices for a single accommodation are the price of two different products. The first price reflects the actual accommodation offered by hosts to guests and the higher price is the listing service. found this pleading to be a mischaracterization of Airbnb鈥檚 own products and that it was not plain and obvious that these are two prices for two different products. Airbnb was found guilty of double ticketing, then the decision. On appeal in federal court, the parties reached a of $6 million dollars and Airbnb avoided admitting liability. Person(s) guilty of a Section 54 can face a maximum fine of up to $10,000 and/or a year鈥檚 imprisonment.
Justice Gascon also indicated that the class action鈥檚 Section 54 claim is and stretches Section 54鈥檚 potential interpretation. However, this class action is not the first Section 54 class action against online sales. On it was reported that a class action against WestJet for double ticketing was approved. In that action, the plaintiff argued that WestJet claimed in its published tariff that the would be free yet proceeded to charge passengers anyways. Businesses can take advantage of online sales by posting one price, then adding non-optional fees in the final checkout. The current provision, Section 54 of the Competition Act has not developed to include online price differences in the list of double ticketing offences. These emerging class actions demonstrate how case law can help adapt statutes to changing sale environments and serve as an expensive warning to retailers that hide fees to better market products online.