After almost a year of deliberations, the Federal Court of Appeal has dismissed the Toronto Real Estate Board’s appeal in its long-running legal battle with the Competition Bureau.
In a June 2016 ruling, the Competition Tribunal found that TREB, by not including sold and other data in its virtual office website (VOW) feed, had engaged in anti-competitive acts that had “a considerable adverse impact on innovation, quality and the range of residential real estate brokerage services that likely would be offered in the GTA” without TREB’s restrictive rules.
In its 75-page judgement, the appeal court says it considered three major issues:
“1. Did the Tribunal err in finding that TREB had substantially reduced competition within the meaning of subsection 79(1) of the Competition Act?
“2. Did the Tribunal err in failing to conclude that TREB’s privacy concerns or statutory obligations constituted a business justification… (to withhold the data)?
“3. Does subsection 79(5) of the Competition Act preclude TREB and CREA from advancing a claim in copyright in the MLS database? If not, did the Tribunal err in its consideration of TREB’s claim of copyright?”
The appeal court confirmed the Tribunal’s findings and dismissed TREB’s appeal with costs.
Late Friday afternoon, TREB CEO John DiMichele said in a statement: “The Toronto Real Estate Board is disappointed in the Federal Court of Appeal’s decision. TREB disagrees with the decision of the Federal Court of Appeal and will be seeking leave to appeal the decision together as well as an order staying the decision pending the outcome of that appeal, if granted. TREB believes strongly that personal financial information of home buyers and sellers must continue to be safely used and disclosed.”
John Pecman, Commissioner of Competition said in a statement: “Today’s decision is an important win for competition and for consumers – it paves the way for much needed innovation in the real estate industry. Anti-competitive activity that hinders innovation in the Canadian economy will continue to be a top priority for the bureau.”
The bureau says, “This will allow home buyers and sellers to take advantage of a greater range of service options when making one of the most significant financial transactions of their lives. Opening up access to real estate data will allow member agents to offer consumers the convenience of data-driven insights into home sales prices and trends via the web, and to improve the efficiency and quality of their services.”
TREB now has 60 days to seek leave to appeal the decision to the Supreme Court of Canada.
Watch REM for further updates and reaction.