Airbnb, an online marketplace where people can list their homes for short- or long-term rentals, had sought judicial review of a decision by B.C.’s Office of the Information and Privacy Commissioner (IPC) to order the City of Vancouver to release information on Airbnb hosts’ addresses and short-term rental accommodation (STR) business licence numbers.
The company argued that the decision ran afoul of the Freedom of Information and Protection of Privacy Act (FIPPA) as it would require Airbnb hosts to disclose the address of their principal residence, and that information, together with the licence numbers and other publicly available information, could be used to publicly identify people.
An IPC adjudicator ruled that the licence numbers were personal information, but principal residence addresses are not, a situation that a B.C. Supreme Court judge said was “confounding,” sending the case back to the IPC for reconsideration (Airbnb Ireland UC v. Vancouver (City), 2023 BCSC 1137). But the judge also ordered the IPC to give notice to licensees in advance of its reconsideration, a situation the commissioner’s office found to be untenable because it required giving notice to approximately 20,000 people that their information was going to be disclosed.
The IPC argued on appeal that the judge erred in considering the notice issue because it was not raised by either Airbnb or the City of Vancouver in the review process — an argument that was accepted by Justice Ronald Skolrood.
“Given the absence of an explicit decision of the IPC on the issue of notice to Hosts and the lack of any supporting evidentiary record, it is my respectful view that the judge erred in determining that notice to the approximately 20,000 Hosts was required in advance of the IPC reconsideration that he also ordered,” he wrote.
But Justice Skolrood, who authored the Court of Appeal’s unanimous decision, did not accept the IPC’s arguments that the judge was in error when he found the adjudicator’s determination that short-term rental licensee addresses are not personal information under s. 22 of FIPPA to be unreasonable. That section of the Act says that the “head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party’s personal privacy.”
“I agree … that the Adjudicator failed to properly consider the context in which Hosts’ home addresses are provided to the City and the implications of disclosing that information, particularly alongside the other information ordered disclosed by the IPC,” Justice Skolrood wrote. “Respectfully, the Adjudicator’s analysis was limited to determining that the hosts’ addresses constituted business addresses and therefore met the statutory definition of ‘contact information’ under FIPPA.”
As a result of his findings, Justice Skolrood allowed the appeal to the limited extent of setting aside the lower court judge’s order requiring notice to the hosts, writing is for the IPC at first instance to determine and give reasons for its decision whether notice is appropriate. He otherwise maintained the order sending the issue back to the IPC for determination. He was joined by Justices Gregory Fitch and Janet Winteringham in his ruling (The Office of the Information and Privacy Commissioner for British Columbia v. Airbnb Ireland UC, 2024 BCCA 333).
Daniel Reid, Harper Grey LLP
“This isn’t just a business address, this is the place where people live,” said Reid, who was not involved in the case. “And to me, this makes a lot of sense — it recognizes the fact that where someone lives is fundamentally different than just a place that someone works from, even if a place has elements of both. So, I think that’s a really important point.”
Reid said the decision also recognizes that administrative tribunals like the IPC are often asked to do a lot with not a lot of resources.
“It recognizes that these organizations in the best position to weigh issues of practicality and efficacy — mandating notice be done in a certain way may not have recognized the expertise that the IPC has in terms of what’s the best way to go about this,” he said. I think the court here allows the IPC to come up with a way for these important issues to get proper submissions that doesn’t unduly burden the tribunal by having to take steps to specifically notify all 20,000 people.”
Neither counsel for the IPC nor Airbnb replied to requests for comment.
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