tribunalBy Jim Adair

The Competition Tribunal has dismissed the Competition Bureau’s complaint that the Toronto Real Estate Board’s policies are anti-competitive. It’s a huge win for TREB and for CREA, but that may not be the end of the story.

The bureau’s application before the tribunal requested that TREB eliminate rules that it claimed “denied real estate agents the ability to introduce innovative Internet-based real estate brokerage services, such as Virtual Office Websites (VOWs).”

Although ruling that the bureau failed to make its case under one section of the Competition Act, the tribunal stated in “an observation” that another section of the act “might give the commissioner a means to apply to the tribunal.”

The decision says: “We realize that the remedies are less extensive under section 90.1 but nevertheless the commissioner might be able to seek an order prohibiting the members of TREB’s Board of Directors (who are competitors) from enforcing the restrictions ….However, we note that this observation is not intended to suggest whether such an application in this case would succeed on the merits.”

John Pecman, interim commissioner of competition, said in a statement: “While I am disappointed that the tribunal has dismissed the bureau’s application, we will be reviewing the tribunal’s decision to determine our next steps.”

Lawrence Dale, who was president of RealtySellers Real Estate at the time of the application and was granted intervenor status at the tribunal, says: “This was a classic case of a legal technicality where nothing gets resolved. The tribunal said the case was filed under the wrong section and has now steered the bureau to refile under the correct section.  Once these technicalities are addressed, the fundamental issues still remain to be determined.  How long that takes to get resolved is anyone’s guess.”

But in a statement, TREB says: “This is a substantive decision which unequivocally allows TREB to continue with its current Virtual Office Website (VOW) policy. These VOWs allow consumers to access Realtor members’ secure password-protected websites displaying MLS listing data. TREB is increasing access and competition while safeguarding the privacy rights of consumers.”

Dale, who has now closed RealtySellers and is with Roger’s Zoocasa website, says, “Despite the uncertainty that this decision has created, I am encouraged by TREB’s more recent approaches to
balancing the needs of consumers wanting more information with historical practices.”

The application was dismissed with costs payable by the Competition Bureau to TREB. To read the full decision, click here.

 

 

 

70 COMMENTS

  1. Ross

    My question is “What” exactly – is copyrighted?

    And, does the “in favour of” have an actual “pattern?

    Copyright:

    In favour of TREB?
    In favour of the listing brokerage via their membership contract?
    In favour of the member, per se? (The listing sales rep?)
    In favour of the registered property owner(s)?

    Any and all: where is the fiduciary duty in regard to protection re copyright?

    Thank you

    Carolyne L

  2. Question please: is there any post in this topic over the recent years, addressing the “Copyright” relationship at TREB:CB:Tribunal discussions?

    If you pull up or print out a TREB listing, at the bottom of each MLS listing you will find an accuracy disclaimer AND a notation that says the material/information is copyright protected,

    Now – what exactly relative to each listing is copyright protected? Is the system methodology protected or the consumer / client material protected? Or is the copyright protected on behalf of the member brokerage?

    And does “your” Board (Readers are not just in Ontario.) have / show a Copyright protection on each MLS listing?

    Copyright is Federal Law. Yes if you wrote “it” – IT, whatever “it” is, is by virtue of your having written it, protected under copyright law, in your name. Automatically. You can also further protect what you write under a formal copyright protection. The way authors and publishing houses divide it, according to their contractual agreements.

    The MLS situation is different. Surely someone in the legal world can speak to Copyright Law, regarding the TREB situation.

    It is a legal specialty and not all lawyers follow the goings on, or practice Copyright Law. It is different from, but sometimes related to, Trademark Law.
    Certainly there would be someone in CREA’s legal department who could address the copyright topic, but it is a rare occasion when anyone at CREA posts at REM, if ever.

    This would be an ideal opportunity perhaps to do so, so the membership, those who perhaps do not have an understanding of Copyright Law would be enlightened. Maybe it is something member fees could be allocated to, if not already?

    Respectfully
    Carolyne L

  3. Let me be perfectly clear. Any CB win will not cause my copyrights or those of my parents or those of my spouse to be forfeited and although of the over 1500 “listings” I personally created less than 50 were ever marketed on the TREB marketing platform, I fully expect TREB to honour the copyright agreements I entered into with them for those 50 or so “listings”, whether it was 25 years ago or 5.

    I expect the limited rights I conveyed to TREB will not be ignored and the value of my creative is protected in they way they agreed to protect it in the copyright agreement I signed with them.

    Again do you know your legal rights under the laws of Canada and how they protect your business like they do all other advertisers in Canada or is your board or association not providing that education?

    http://www.RossKay.com

  4. Just Thinking!!! The Competition Bureau was threating TREB with an Admin. Penalty (I kept hearing $10,000,000.). But the Bureau basically just walks away (after paying TREB’s court costs) which pretty well says to me that the Bureau should not be trusted with such a level of power re: penalties (and the threat thereof) to intimidate with.

    • Mike:

      Legal scholars are split regarding whether the Administrative Monetary Penalty ($10,000,000. for a first time levy, and then more for a second levy against the same ‘alleged’ offender) is constitutional or not. I believe that it is unconstitutional. It is a form of taxation without representation, because ‘unelected’ officials decide whether to apply the penalty (tax) or not prior to/without due process through the courts.

      Melanie Aitken was in my opinion guilty of Abuse of Dominant Position herself when she unilaterally threatened to apply the AMP against CREA based upon her personal opinion re CREA’s alleged Abuse of Dominant Position.

      The mere threat of the AMP was enough to send the CREAcrats scurrying for cover, when they should have challenged the tyrant in court, as did TREB.

      The only way to fight back against someone with a big stick is to convince him/her that one has a big shield, a bigger stick, and the willingness to use both.

  5. You are all speculating , for now be happy
    TREB won CREA supported the partner
    Board. So enjoy the moment because the
    C.B is never going away and we must
    always be vigilant because the C.B is!!!

  6. We as Realtors have paid for historical information for years. IT IS OUR INFORMATION ! The listings and related information belong to the Brokerage. Not your board, not Crea , not the Government, We should not give it away under any circumstances.

    I guess you could say when Geowarehouse is asked to make all their information public, without cost,then we may have to surrender.

    Other than that, we fight.

    • Actually D realtor you are wrong. The information we collect belongs to the public and we have to follow rules on how its collected, managed and distributed. Just as doctors collect information they too don’t own it and are required to follow rules. Just because you sell MY house and collect MY information doesn’t mean you own MY information.

      That is why our idustry is under such heavy scrutiny, because we are managing public information and are subject to law and we are entrusted as professionals to do that well. Its not our information. Its not our database.

      What if that trust is lost and the government demands they manage the history? What if the publics demands the government do so ecause they feel we’re incapable or are using THEIR information against them? We should recognize the privelage we have.

      As well, sellers can’t just throw their homes on MLS for free as some often suggest, just like sellers can’t park their cars on a lot and sell it for free. Sellers have to list their homes through a licensed brokerage and what that brokerage charges is up to them. If you want to charge more, offer more, justify more then go ahead.

      We hear these silly arguments all the time and it makes us look like idiots. I’ve said it a million times, let’s argue from a position of reality.

      • Illegal user of CREA Trademarks,

        The courts have already decided the information is copyright protected and not for public use.

        The brokerage does own the information and every seller has already contractually agreed to such.

        MLS associations license that data, previously under exclusive licensing now no longer exclusive because of needed changes to MLS bylaws to allow for the ddf and franchise brands demands for equal licensing rights.

        Sellers have been able to post on MLS for free, with no contractual obligation other than an agreement to make said posting.

        Again the quicker consumers learn these facts, contact their lawyers, review court cases and contracts, guitar hearing only the discounters message, see the real stats posted proving such audited by price waterhouse or such, the quicker CREA will stop the illegal use of their trademarks.

      • The public owns that which the government controls, even then the public has no right of access to much of what they do own.

        But by logical extension of your understanding, since the banks collect sales prices and addresses, their information also belongs to the public and anyone can demand access to their database.

        If this judge held your view, Fraser Beach would have had access to all of it:
        “The MLS Database, and the Services provided to enable access to the MLS Database, were “the sole property of TREB” and “proprietary and confidential to TREB”: AUA, section 7(a).” snip
        http://tinyurl.com/fraser-beach

        And so would this judge, who agreed with the first:
        http://tinyurl.com/beach-appeal

        And so too this judge, who denied Zoocasa access to scrape C21’s web site would have agreed with you:

        “Just because a party chooses to do business on the Internet should not mean they relinquish their rights to control access to their business assets and information. The defendants’ submission would deny that right to the plaintiff Century 21. In turn, that would decrease their motivation to create and operate their Website.
        [116] In my opinion, a publically available website does not necessarily give a right of access free of any contractual terms. Depending on the circumstances, a contract may be formed.” Snip
        http://tinyurl.com/rogers-c21

        Even Realtysellers’ who puts out sales info viaTosolds disagrees with you:

        “The database and all materials associated with listings on this Site are protected by copyright laws and are owned by the Toronto Real Estate Board or by its members who have supplied the data and content. Property listings and other data available on this Site are intended for the private, non-commercial use by individuals.”
        http://tosolds.ca/?page_id=6

        While your seller clients are reading one thing, you must be telling them something else:

        Clause 11 of the Listing Agreement
        “Seller acknowledges that the MLS® database is the property of the real estate board(s)” snip

        • HWR:

          You have just been proven wrong by two very knowledgeable people; EOTN and PED know their stuff.

          One would have thought that the CREAcrats would have had the right stuff to have been able to stand up to the unconstitutionally armed via Administrative Monetary Penalty wielding Competition Bureau bully, Melanie Aitken, a few years ago, as TREB had/did.

          You are coming across more and more as simply being a fast-talking sell, sell, sell Realtor vs being a knowledgeable, well rounded one.

          Better get that leaky screen door fixed on your sub. It’s letting in all kinds of myths and misinformation along with the krill and plankton.

          • Brian if I was to sell your home. Your families home and your friends homes and I collect that information…can I now do whatever I want with that information? Can’t wait for your justified rant!

            Leaky screen door? Martindale even your personal attacks are old.

        • The information is collected and managed by the Boards and the manner in which we used and distribute it is subject rules and regulations. Its those rules and regs that are being challenged.

          If we truly owned it then this fight wouldn’t be going on.

  7. Here is what will happen. Zoocasa/Rogers will create a interactive website with up to date listings with more information than REALTOR.CA. Eventually the public will opt for their website, eventually REALTOR.CA will become obsolete. Maybe CREA, will update the the site but by that time it will be too late because, lets face it Rogers crushes any competition.

    Why oh why do we pay these organizations these fees, when they refuse to adapt to the industry changes, or better yet prepare for the changes that were inevitable. STOP protecting the information, and find strategies to improve the system, so that Realtors can be given the respect that most deserve.

    • Andrew … you’re bang on.

      Cdn Organzied Real Estate (CORE) and most “protectionist” realtors are so focused on the legal issue and hoping for a legal resolution that they’re
      completely oblivious to the free enterprise competition-driven 200-car freight train that’s bearing down on them with the perhaps unintended goal of obliterating the real estate industry as we know it.

      And don’t give TREB too much credit. They’re the same ones who made the decision behind closed doors and a secret tendering process to do away with
      GeoWarehouse without consulting the body elect on such a fundamental decision.

      Notwithstanding the above, I know many will
      view the following as arrogance but it’s intended to be a statement of experience and knowledge. I spent 35 years in IT and consider myself more of an authority
      on the impact of technology on business and society than any staff member in TREB. TREB’s legal posturing is only delaying the inevitable. They will NOT win the day.

      Technology is like water. It will flow everywhere … anywhere and bring life-giving value or rain down hellish destruction wherever it flows. You either prepare for it or become a victim of it, but you can’t stand in front of a tsunami and say “Divert thyself because I own thee!” It’s ludicrous.

      If you think you can control ownership of publicly-derived data (eg MLS), you’re sadly mistaken there too. If the unfathomable resources of governments like China, Russia and the USA, can’t control the flow of information (eg gambling, porn, racism, political news, etc.) on the Internet, what chance do you think one piddly industry like CORE has?

      Start building your CRM, prepare for the anti-spamming laws coming in July, understand and exploit social media, build a database of properties, adopt/adapt technologies to improve your efficiencies … either CORE does this or you do it yourself or you die. Given CORE’s current path and recent history, CORE will at some point (less than 5 years), become
      redundant and someone else will step up to the plate to provide these essential services and capitalize on our economies of scale. It would be a real shame though if it was someone like Zoocasa, which is driven by one corporation’s profit margin rather than by the best interests of realtors.

      CORE claims to be standing behind the tenuous position of protecting privacy data. What a crock! I’m convinced now that CORE is driven primarily by self-preservation than by any genuine ideal for the betterment of realtors.

  8. Why not let the government pay for your websites folks?

    Did you know they will spend over 10 million on online advertising this year?

    What about GM they will spend over 19 million?

    Don’t forget financial services that spend over 150 Million.

    Did you know Your Listings currently deliver the 2nd highest number of ad impression ooportunities in Canada?

    CREA or TREB legally cannot take those profits but Zoocasa Brokerage or Joe Smith Agent legally can.

  9. For those in ORE who think this is the end of it with Rogers and Zoocasa lurking here are some numbers.

    In 2013 the following advertisers will spend FOR TOTALLY ONLINE ONLY IN CANADA ALONE, over the following amounts:

    TD Bank: Over 19 Million
    Capital One: Over 19 Million
    American Express: Over 13 Million
    BMO: Over 11 Million
    RBC: Over 12 Million
    CIBC: Over 7 Million
    HSBC: Over 5 Million
    Bank of NS: Over 5 Million

    With a TOTAL ONLINE CANADA ONLY SPEND OF OVER $150 Million Dollars in 2013.

    Do you really think Zoocasa Brokerage is thinking about agent referrals fees or are they only thinking about which website your clients eyes will be watching?

  10. AEL, is correct based on an independent legal interpretation of the ruling, from a law firm that specializes in the NFP area.

    It appears the reference of 90.1 was a clear warning sent from the tribunal and will immediately impact the Boards of ORE as they exist in Canada. This is the first instance of a Board, comprised of direct competitors, being specifically singled out in a negative decision, along with impact of any vote the MEMBERSHIP itself could be held accountable for as direct competitors.

    In Zoocasa Brokerage’s case the IBA of Canada would be brought into play for Damage assessment. No board, even CREA could fund an objective award of calculation of damages from the IBA even with it’s current traffic count.

  11. The Tribunal decision is correct but for the wrong reason!

    There should not have been a challenge to TREB’s policies in the first place.
    If the REAL reason was to challenge anti-competitive practices, why does the bureau not aim at the oil companies (gas price fixing), the banks (essentially same rates & fees AND reducing competition by buying insurance companies, investment brokerages, etc), and ROGERS (they have eliminated most of their competition.

    The public should realize we are all paying more for many monopolistic goods & services mentioned above AND we are paying for the bureau’s costs for bias, useless, ineffective (filed under the wrong section???) operations that benefits members of the bureau, NOT the public.

    The ultimate insult to the public is for the bureau to continue spending taxpayers money that could be used for much better benefits for those in need….we all need to communicate with our MP’s, cabinet ministers and the Prime Minister’s office that government funds could be applied for programs that promote jobs for the public, NOT the useless pursuit of ulterior agenda of the bureau that results in poor use of resources.

  12. Likely headline at some time in the next 30 days

    “Bureau files appeal and also files new charges against TREB’s – Directors as suggested by the Tribunal in initial decision.”

    How would you like to be a TREB director now, with the Tribunal essentially telling the Bureau the right thing to do is to charge the directors personally and not just go after TREB.

    These are not are positive days for us.

  13. Another example of bureaucratic bungling! I can only conclude that
    Canada’s competition bureau is a total fraud. It’s function has been to enable big business to defeat small competitors, which is the exact opposite of its true mandate.
    Our government urgently needs to revise the Bureau’s mandate so that the protection of small competitors takes precedence over the requirement to open up competitive practices to methods only affordable to the largest enterprises.
    I worked in the corporate sector from 1970 to 1990 on market dominance strategies and the result has been the oligopolization of most industries in Canada, while under the watch of the CB. Real estate is the most competitive industry in our country and the CB needs to open their eyes to see and understand this and then back off!!!

  14. Batlle one has been won, congratulations TREB!

    Battle two however still before the courts, has yet to play out – Lawrence Dale’s lawsuit against TREB and some directors both past and present. Given the tribunal’s hint as to how the CB should have proceeded, they’ve actually indirectly pointed the CB to a re-submission depending on the outcome of this pending case.

    I believe in TREB and have nothing but praise for the solid professionalism of everyone of the paid staff who are second to none, to the directors who strive to ensure TREB is for an all inclusive, every member to succeed association. This I can say with absolute certainty because for the past 5 years I’ve had the distinct pleasure, via committee, to work with some of her senior staff and directors and I’m very proud to be a member.

    Thank you TREB!

    Penny Elizabeth Dutkowski, Broker

  15. Would be a great time to rid ourselves of Realtor.ca and let some individuality back into the promotion of listings, while pulling down the big target.

    • Solution.

      Deny the validity of the paid referral network (being proposed by Roger & Brookfield). Elevate the Standard and Quality of Marketing & Production material. As a Realtor – submit yourself to filtration.

      Lets face the reality, this industry needs some trimming. And it will happen – if not for the influence of market cycles.

      As a Realtor ask yourself how frustrating your business has been made by incompetent registrants? and/or have you witnessed or been a victim of underhandedness by a fellow agent?

      If there is going to be some pruning how do you think it should be done? As transaction volumes slide, what would you do to stand apart?

      This solution is closer than you think.

      • I agree Stephen:

        It all starts with that person looking back in the mirror. Resolve to actually become what one ‘claims’ to be, an honest, ethical professional with moral values brought to the fore regardless of whether there will be a pay cheque each and every time ’round the deal wheel.

        Thomas Jefferson, one of the thirteen colonies’ rebels/fledgling U.S. early leaders, and future participating framer of the U.S. Constitution, said that the country with the most laws is the most corrupt country. Likewise, an industry requiring volumes of rules/regulations is obviously responding in kind to the potential for, and outright practice of, by too many of its members, corruption.

        It all starts within ourselves.

        The wakeup call has been delivered.

  16. Lazy people take, hard working people make.

    So many hard working Realtors I’ve known over the decades, all paying their dues to maintain all this info and working long hours to create it – now, we must hand it over to the public? The 10’s of thousands of Realtors? who cares about them and their families, I want to take that money. Rogers wants to take everyone’s money… when your job is in jeopardy, you’ll feel it then – Karma is a bitch. I hope every individual with the intention to take down Realtors squirms in financial pain. Few understand how the industry works and think it’s easy money, meanwhile 1/2 of new realtors fall out of the business in financial distress, few get to become top dogs. These highly paid (and rightfully so) Realtors give the impression that ALL realtors are rich – people can be so clueless. Sitting pretty in their union jobs – poking at anything they feel has money to spare without any real knowledge of it.

      • Right on, this is just going to go on and on and cost us the hardworking Realtor’s trying to make a good living. We the Realtor’s pay for and support our system we should be allowed to dictate who use’s our data, and not have to deal with a bunch of government officials who probably could not get a position in the private sector

    • The HWR making the above comments is a different HWR. I do agree with the comment lazy people take but we could say that of the lazy Realtors who do little but feed off a system that been essentially established by the top 20%.

      I also disagree that we are handing anything over to the public. The public has to access the MLS through a licensed brokerage…period. What service and fees that Brokerage charges is up to them. Period.

      Lastly, you’ll never hear me crying that someone is takig something from me or that I have a right to anything that I don’t work for. To play a pro sport you have to work like a pro athlete. Same here. And pro athletes don’t cry when the changes or adapts, they get right to work to adapt to be even better. That’s what a true professional does.

      Just because you pay due doesn’t mean you belong or are capable or deserve to make what others do. Once you understand that you might have a different view. In fact, its an insult to our profession to suggest that our professional association is in place to protect the weak…that my friend is what unions do.

      The Real Hard Working Realtor

      • Because I’ve been using it in the forum for about three four years…maybe more! That’s why I wanted to clarify my position as Brian Martindale might think he’s winning me over …right Brian ;) Surprised mine got used by someone else?

  17. HELLO OUT THERE

    IT APPEARS NO ONE READ THE DECISION, ITS ONLY 8 PAGES!

    The case was dismissed because they felt the bureau charged TREB under the wrong section. If you all are so naive to think this is not just beginning, you really do not understand how these things work.

    The case DID NOT say TREB was right or the bureau was wrong-IT DID NOT DEAL WITH THE CASE AT ALL!

    Some of you are correct-this will not go away. The Bureau was forced into this and can be forced to continue since the merits of the case have not been decided.

    This was like the Bureau putting the file into the wrong bin-it is absurd to think that they will not take the Tribunal up on their suggestion to file the case in the right bin!

    • Absolutely no win here just a nudge by the Tribunal to try again– all at no cost to them just us the poor consumer taxpayer!
      I wonder how much this really cost us just for lawyers fees? Oh I forgot that’s probably not public knowledge!

    • When the case is refiled which I am sure Rogers will ensure happens as it has a vested interest now, TREB will be faced with Rogers Legal Team applying for intervenor status.

      Zoocasa will utilize the TREB By-Laws and those of other Ontario Real Estate boards, which do not provide for the limitations on sold data that TREB is claiming, to be the basis of winning the complaint.

      CREA, the authority used in changing by-laws in this specific area, under the guise of being CB compliant and stopping these complaints, will be exposed in a way not imagined at the time these by-laws were suggested.

      The real question is what with REMAX, Brookfield (owners of Lepage), C21 corporate do? I would suggest using the new entrant Zoocasa as a legitimate reason, they should be added against TREB.

    • It is absurd to think that the brain trust that is the Competition Bureau cannot even get it right when it comes right down to knowing how to file a case correctly. DUHH!

      The Competition Bureau (John Pecman) needs to think this whole thing through carefully before again going on the attack aginst TREB. Two losses in a row would equate to outright incompetence within that bureaucracy.

      There is an old saying within political science circles; every government bureaucrat rises to his/her level of incompetence. Government bureaucracies are not meritocracies; they are havens for levellers…anti- everything creative and efficiently productivity worthy that makes things better for performers and thinking people at large. Unionized Government bureaucracies exist ultimately for themselves and for their in-house make work projects at the taxpaye’rs expense.

      I predict that if the Competition Bureau gets smart then it will let this misguided issue die a natural death.

      Brian

    • Mr. Joe Consumer

      The fact that the decision was only 8 pages should give you an idea how swift and crushing a loss it was for the CB. Have you actually read it? I don’t think so. You must have a very narrow and low opinion of the high powered legal team (that you and I are paying for) that took on the case on their behalf. The fact is they approached the case in the only way they possibly could have and still got their butts kicked. Your dim witted suggestion that the file was placed in the wrong bin is laughable.

      You are right when you state that this is far from over. How unfortunate for hard working realtors, the system and consumers in general that all this time and money is being wasted to hack away at a system that is the envy of the real estate world. It is unfortunate that there are people (not saying you) who are making windfall tax free profits who begrudge paying the people who make it work.

      As for Larry Dale, where was he as an intervenor when submissions were being made . HE DIDN’T EVEN SHOW UP!!
      Talk about hypocrisy in action. Fortunately he has found a new mark with a ton of money to line his pockets.

      So Joe you’re right…it ain’t over but remember, karma can be a real bitch.

      • Brian, why do you say Joe Consumer is dim witted and on what basis are you saying that the approach taken by the CB was the only way they could have approached the case?

        • Alex, I merely stated that his suggestion was dim witted. It was not a personal attack. Come on, they lost this case big time based on the way they approached it. Do you not think that this legal team went over ALL the possibilities? If there was a better way to do it their collective professional opinions would surely have come up with something better. Credit them with the attempt they made.

          I am not a lawyer and do not put myself out there as a legal expert. However the fact that they lost out on ALL counts does not surprise me. I truly believe their anti competitive premise was flawed from the outset. Everything was laid out on the table and an independent decision was made based not only on law but plain old common sense.

          As for another approach, let us wait and see if they decide to further pursue this issue on the Canadian taxpayer dime.

          Time to move on.

      • Brian,

        As the saying goes……..he who laughs last laughs best.

        Round 1 goes to TREB on a technicality-go ask any lawyer with half a brain and they will tell you NONE of the substantive issues were addressed.

        This is a death match. Let see who is still standing after round 10 and who is left crying on the ground.

        • Joe Consumer

          I know that old saying but here’s one for you compliments of Tiger Williams…” You can stick a fork in them, they’re done like dinner”. For your information Joe, round 10 has just happened but championships go on for 12. However I think this one was a knockout.

          That will not stop the legal beagles from coming on. They are the only ones who will laugh.

          Sad.

  18. WOW< it is great to hear about the battle being pretty well over with Competition Bureau, HOWEVERE, this issue with Rogers, Zoocasa, and data is discusting. Doesn' Rogers realize their are going into direct competition with one of their biggest customers, Realtors who use their services? Along with Lawrence Dale, just putting their noses in between the public and Realtors to take a piece of the ever diminishing commission pie. I am so glad I am near the end of being in this business, but so sad for it's future. I will cutting off my 3 Rogers phones, cable, and internet services. Why give dollars to a direct competitor?.

    • Well said Brian, we seem to be put in a no-win situation all the time. I’m glad I am near the end of my chosen profession, it’s just not what it used to be 37 yrs. ago!

  19. It’s great that the Competition Bureau compensates TREB for their costs but, remember where the Competition Bureau gets there funding from.
    Tax payers!
    Perhaps it’s time for the public to know that the Real Estate Boards are not for profit organizations and that there taxes are going toward the persuit of our organizations in desperate attempts of discrediting there professionalism.
    I find it concerning that a few people born with a silver spoon in there mouth are allowed to proceed with these actions unscathed

    • Of all the comments so far I think this is worth really looking at. Here we have publicly funded lawyers charging not-for-profit Boards and Associations with violating a law. The only people who really win here are the lawyers involved who get paid regardless, unlike us! And it’s our tax dollars used to pay them. It appears to me this is fundamentally wrong on many fronts?

  20. It’s a great day and a big thanks to TREB for taking on the big bad wolf, as to a victory for CREA, I don’t think so, they were just along for the ride, where were they when we needed them, thanks to CREA we are now living with a 10 year Prohibition Order. I would be interested in the amount of costs for the hearing the Tribunal ordered the Competition Bureau to pay!! I would be surprised if the Competition Bureau has the appetite for another go around in the near future, mybet they will think long and hard before they take another run at TREB.

  21. The greater issue here is nothing is ever final asl ong as people like Dale exist, people who are really only interested in fattening their own wallet. This particular battle may have been won but it is just a small skirmish compared to the endless attacks that have and will continue to take place.

    Even though I am retired this move by Rogers will ensure that I will never be a customer for them.

  22. I have always been amazed at the urgency of Realtors to surrender every iota of data within their possession to the public. Just because the consumers want it doesn’t mean you have to give it to them. Instead of driving consumers to public sites like realtor.ca or zoocasa.ca they should be driving them to their own websites. Shut down realtor.ca. Opt out of the DDF. The consumer will still find your product online with just a couple of clicks. Pulling your pants down to your ankles to show all does not make it easier to run.

    • Realtor.ca should never have been an online portal to listings across Canada. CREA should be in the business of promoting its members only not homes.

    • Here here Michael. Well said and I’ve been screaming this for years. Why do I as an independant contractor and mainly a listing agent have to compete with realtor.ca?? That’s what it is…a competing domain. I would benefit far more by doing my own marketing of listings and not having realtor.ca for the publics use!

  23. Zoocasa must be laughing all the way to the bank. Now they are the only brokerage or agents in Canada that will have sold data on their website. Remember they have a deal in place with Brookfield to get all sold data.

    TREB just won a case where, because of the zoocasa brokerage formation, all it’s agents and brokerages just got burned, under terms that did not exist when the complaint was argued.

    Dale is fully aware that TREB will be forced to release sold data because TREB brokerages and agents will demand it on their websites now to fight zoocasa., Dale alludes to this in his comments but he also knows ZOOCASA Brokerage will have a 12 to 18 month lead time to take over real estate search because of the timeliness of your AGMs.

    Why did TREB not take this opportunity, where all of Canadian REALTORS will hear about this to warn it’s members that if they are on zoocasa they are in breach of RECO in Ontario right now.

    Finally, we all know CREA releases sales data and hosts the HPI platform, which universally spins the data in a pro-seller way. All the major news rooms and BNN are ticked at this ongoing misleading of their readers/viewers. Consumers are now universally becoming aware of the misleading nature of CREA releases. I can assure you, more doors to attack have just opened.

    Again where is the help you need to protect yourself? Dale is laughing at you guys again this morning.

    Are their any Exclusive Buyer Agency Brokerages in Ontario? If so please post with approval of your broker of record.

    • I was a former employee of Brookfield. Their business model (so far as I saw it) concentrated very heavily on profiting off of Realtors – IE – mandating that all commission advances (@Royal LePage) be serviced by their parent company.

      I feel compelled to tell you that any partnered efforts by Brookfield and Rogers will be a corporately minded strategy = To dominate and re-shape the environment they have targeted.

      These two companies are a blend of Realtor Network operations and communication and a communication/production media Co.

      If you are unable to parlay the implication in your mind…

      The result of any hearings from here on are mute – the business model being proposed by these two Goliaths will operate just fine, regardless of any potential hearing outcome.

      Unfortunately, Realtors as a group:

      A) Lack the strategic response that is appropriate to the “attack” being drawn up as we speak.

      B) When a model of a dynamic solution that preserves a Realtors integrity is offered, Realtors will be in fear of it. Because even that solution will mean industry pruning.

      Lets face the reality, this industry needs some trimming. And it will happen – if not for the influence of market cycles.

      As a Realtor ask yourself how frustrating your business has been made by incompetent registrants? and/or have you witnessed or been a victim of underhandedness by a fellow agent?

      If there is going to be some pruning how do you think it should be done? As transaction volumes slide, what would you do to stand apart?

  24. Did I miss something? The article suggests another run at this. Interested in you comment Brian M. Its a bit cryptic to me. Why won’t his boss support another run at it?

    • Hi Lou:

      Melanie Aitken was promoted to the position of Commissioner of the Competition Bureau by the former Minister of Trade, Tony Clement, via the “Governor in Council” provision. The current minister, Christian Paradis, was in the driver’s seat when Melanie ostensibly “resigned”. Mr. Paradis had no personal loyalty to Melanie. Mr. Paradis did not appoint Mr. Pecman directly to the commissioner’s position, as he could have done. Instead, Mr. Pecman is on probation, in a manner of speaking. He is, and has been for quite some time, only the ‘interim’ Commissioner. One would assume that Mr. Pecman wants to become the fully fledged commissioner. What to do to, or not do, ensure that he indeed can justify being promoted to the top of the C.B. heap?

      The C.B. has already lost a big, high profile case initiated by a failed commissioner who was appointed by the current government. The current Minister of Trade, being Mr.Pecman’s boss, does not want to be involved with another loss on the same file. There is no guarantee that a second Application against TREB and its directors under section 90 of the Competition Act will succeed, else Melanie would have gone that route. Melanie chose the stronger of the two routes in her legal opinion; she wanted to win bad.

      The Observation by the Tribunal within its judgement was simply its way of doing its due diligence by exposing the obvious, that the Bureau ‘could’ have chosen to pursue its application under section 90 as that was a course that was open to it. Why would Mr. Pecman now decide to take a chance with his career by taking a second run at TREB and its directors whilst still in the interim stage of his upward ascendancy within the bureaucracy? He would have to believe that he could win via section 90 whereas Melanie believed the odds were not as good as they were by using Section 79.1 and therefore pursued TREB via Section 79.1.

      Tony Clement appointed Melanie, not Mr. Pecman, to the position of Commissioner because he felt that Melainie was a superior choice for the job vs Mr. Pecman.

      Mr. Pecman has to tread carefully with this file going forward.

      Of course Mr. Pecman defended his former boss, Melanie, when queried about the Tribunal’s decision to dismiss the Bureau’s application; he could do no other. To do so would be to slam a sitting minister’s (in another portfolio), thus the government, his political boss’s, poor judgement in hiring Melanie in the first place.

      I suspect that Mr. Pecman is not as hell-bent-for-leather on this file as was Melanie. He has seen the fallout from Melanie’s folly…from the inside.

      Brian

      • Brian,

        Some articles already state that some people are ready to file a complaint to the Bureau to force the Bureau to proceed under Section 90.1-people have that right I am told under the Competition Act. So, even if Pecman wanted to let this go, its not entirely in his hands. Knowing that members of the public will force his hand in any event, I don’t think he would want to be embarrassed into the Bureau being forced into taking action. These things just don’t go away in these circumstances even if people like you hoped and prayed they would. This is far from over I suspect.

        • Joe:

          I don’t hope and pray that the C.B. will not pursue this issue at all. The original Application was against TREB as an entity. If under section 90 of the Act certain ‘individuals’ within TREB are proven to have conspired amongst themselves in violation of the terms of the Act, then so be it. A legal corporation/trade organization is merely a compendium of its separate parts. There may indeed be some dirty bathwater mixed in with the baby from time to time. Don’t go after the baby, as Melanie did. Act like a surgeon and try to excise to offending part, and not like a bull in a china shop, as Melanie acted.

          The next Commissioner cannot be forced to act on every complaint that crosses his/her desk. The next Commissioner, if he/she is politically savvy, will choose his/her battles based on the merits of the complaints vs a battle based upon an ego-driven vendetta, ‘possibly’ showing favouritism in favour of a particular complainant, as I think Melainie did.

          Be reminded that the Commissioner of the C.B. has to avoid being seen to be potentially in conflict of interest whilst carrying out the duties of his/her job. What no one is talking about is whether Melanie was in conflict of interest, or not, vis a vis her support of Lawrence Dale’s real estate related business interests and his complaints against ORE et al.

          Often, where there is smoke, there is fire.

          Anyone can file a complaint against anyone else/any organization, but the responding responsible agency has the discretion to investigate a complaint for validity prior to running with said complaint or not. The C.B. is not bound to formally take up the cause of every scurrilous complaint that crosses its desk. As is the case with the Supreme Court, formal cases are chosen for their merit. The Commissioner gets to decide if a case has merit or not, and therein lies the potential for conflict of interest.

          • Brian,

            Again you venture into areas you just have no knowledge of. I am told that section 9 of the Competition Act can be used by members of the public to FORCE the Bureau to commence a formal inquiry. Once a formal inquiry is underway, it just cannot be stopped on a whim by the Bureau. So, you are wrong……….once again I might add. You should check out the facts before speaking as if your word is the law!

          • Joe:

            Inquiry: 1, search for information or knowledge; interrogation; investigation. 2, a question. (Websters)

            Application: a request or petition. (Websters)

            An inquiry, formal or not, is ‘not’ an Application, nor a direction, nor an order to comply nor an order to cease and desist

            Once an inquiry is underway, there will either be findings that support filing a direction or a cease and desist order, possibly leading to an Application, or there will be not. Nothing is automatic and/or forced as you claim.

            Discretion must be used by the Commissioner and his/her in-house legal team to determine whether or not the results of an inquiry fit within the interpretation of the Competition Act in a manner befitting the launch of a hoped for successful Application before the Tribunal, assuming that the alleged guilty party has beforehand challenged the Commissioner’s cease and desist order re the continuance of whatever action(s) that the Commissioner has dictated that said alleged guilty party must stop. This is not a dictatorial agency, although some in the Competition Bureau have acted as though it is. You sound as if you wish it were dictatorial in law.

            There is this principle called “due process” in our democracy that you seem to want to ignore that allows folks and organizations to resist the tyranny of bureaucrats with too much unelected power under their thumbs, my friend. That is why they have elected overseers/bosses in Parliament. I have personal experience doing battle with some of these unelected agencies which would have had me believe that I was powerless to resist their dictates because, as I was warned by their relevant lawyers, “It’s the law; you have no choice; you must do what I say, because I am a lawyer, and I say that the law means this or that. Do this or that or you will be penalized.” Sometimes the law is an ass, or worse, unconstitutional.

            Your scenario is realistically untenable. If the Competiton Bureau followed through on every single scurrilous complaint brought forward by whomever, through the initial inquiry (aka discretionary) triage stage, to the ultimate conclusion of an Application for each complaint, physically before the Tribunal, there would not be enough bureaucrats in all of Canada in all of the Silly Service departments lumped together to process these complaints through to their logical/illogical conclusions.

            I repeat, an inquiry, formal or not, is ‘not’ an Application, nor is it a suggestion, a directive, nor an order to comply/cease and desist order. It is simply an inquiry. It’s about asking questions to find out if there is merit to a complaint. Of course the Bureau has to deal with at least an initial complaint. If it is found wanting it is not forced to follow through with sanctions just because the complainant filed a complaint.

            The bureau ‘may’ decide to follow through on an inquiry at its discretion, or, via application of political bias, as the case may be.

            In its “Notice of Vacancy”, ‘Office of the Commissioner of Competition’, it states, among other things that “The preferred candidate will possess the ability to interpret relevant statutes, regulations and policies…”. This speaks to discretion. It also states “He/she will also…possess sound judgement and discretion.” If all complaints are automatically forced to go the distance, no judgement or discretion therefore is needed.

            Just because someone complains that someone else’s behaviour is in violation of the Competition Act does not make it so. That is why the Bureau exists…to determine if in its discretionary opinion there is a violation or not.

            You make it sound like the Competition Bureau has the mirror image of the powers of the language police in la Belle Provence. It does not. Even a decision by the Tribunal can be challenged in court and ultimately overturned. Ergo, thank goodness for “due process”, something that CREA, in its faulty discretionary application of legal principles/probabilities, failed to take advantage of when Melanie came huffing and puffing at its door, but something which TREB ‘did’ take advantage of.

  25. I hate “I told you so” types, so I won’t say it.

    John Pecman, interim commissioner, might want to think things through very carefully before proceeding against TREB all over again on this issue…if he wants to be named Commissioner by his boss, Minister of Industry, Christian Paradis.

    Brian

  26. When an industry has done nothing but improve itself and attempt to educate Realtors to turn them into the Professionals that they should be, it is sad to see people like Dale try to destroy this improvement with the help of a few. A good Realtor offers a lot to the Public and fortunately , the majority of the Public understand that now .

  27. Unless “organized” real estate gets its act together and works at creating provincial MLS databases and making realtor.ca far more robust and effective, none of this will matter in the long run. CREA is trying hard but it may be too little to late in the fact of challenges by huge competitors like Zoocasa who will soon have the vast majority of consumer web traffic. We did this with the DDF and now we are going to pay the price.

    • Sorry, but Realtor.ca should just go, or at least not be involved with the advertising of listings, in my opinion.

  28. Fantastic!!
    And Bureau has to pay TREB their court costs. And who really cares what the hypocrite, Lawrence Dale, has to say anymore…..how about…..nobody……he’s going to slip away into irrelevant obscurity after turning an industry on their heads for years through this process. His 10 minutes of fame is over.

  29. We watch from afar as TREB battles for what is ours. Mr. Dale has a set on him, especially when he begins trying to sell those leads to ‘no longer Rogers’ cell phone carrying REALTORS. Go ahead and apply, and get kicked to the curb again. We are happy to share all the data, just don’t make it a race to the bottom with it.

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