The Toronto Real Estate Board (TREB) has 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, the Competition Tribunal has found.

During the tribunal hearing last fall, the Competition Bureau said that TREB stymies fair competition by monopolizing the MLS terms of use to the detriment of virtual office websites (VOWs), as well as to TREB’s 42,000 members and to consumers.



In a statement, the tribunal says the Commissioner of Competition “has established, on a balance of probabilities, that the three elements of section 79 (of the Competition Act) have been satisfied.” It says, “TREB substantially or completely controls the supply of MLS-based residential real estate brokerage services in the GTA, within the meaning of paragraph 79(1)(a) of the Act.”

The tribunal then found that “TREB has engaged in, and continues to engage in, a practice of anti-competitive acts, as contemplated by paragraph 79(1)(b). In essence, that practice is comprised of the enactment and maintenance of certain restrictive aspects of the rules and policy that TREB has adopted with respect to VOWs…”

The tribunal also found that “the VOW restrictions have had, are having and are likely to have the effect of preventing competition substantially in a market, as contemplated by paragraph 79(1)(c). The tribunal reached that conclusion after finding, among other things, that the VOW restrictions have substantially reduced the degree of non-price competition in the supply of MLS-based residential real estate brokerage services in the GTA, relative to the degree that would likely exist in the absence of those restrictions.”

The tribunal says the specific terms of its order will be determined “after the parties have provided written submissions addressing this issue of remedy” and have had an opportunity to make oral submissions on that issue.”

A confidential decision was released to the parties involved in the hearing on Wednesday. A public version of the decision will be released in the next couple of days. Watch REMonline for details and updates.

Update:  The full public decision is now available here.

John DiMichele, CEO of the Toronto Real Estate Board said in a statement to REM: “TREB has been advised by its legal counsel that they have received a lengthy confidential document containing the Competition Tribunal’s decision in the matter of TREB vs. Competition Bureau.

“At this time we understand that no order has been issued and that the tribunal has only partially granted the bureau’s application.  The tribunal has also asked that both parties provide input to remedies.”

During the hearing, the Competition Bureau’s lead counsel, John Rook, argued that TREB has substantial or complete control of real estate brokerage services in the GTA; that TREB has exercised that control in a manner that had the effect of creating or maintaining its market power to the benefit of its members; and that this has substantially lessened competition in the real estate marketplace. Rook described TREB’s business practices as predatory.

TREB counsel Don Affleck challenged the Competition Bureau’s position that TREB’s VOW policy was anti-competitive, suggesting that the evidence is “clear and abundant” that the policy is neither exclusionary nor disciplinary to members or entrants who want to offer a VOW.

TREB cited privacy concerns as its reason for prohibiting VOWs from displaying some information, such as sold prices, that can be gathered from the MLS. TREB currently permits the disputed information to be shared with clients in person, by fax or email only.

A bureau witness during the trial was Bill McMullin, CEO of Viewpoint Realty, which has grown into Nova Scotia’s largest real estate database, in part, said McMullin, because it makes all relevant information available to the public.

TREB’s lawyers said that Viewpoint was the subject of numerous privacy complaints and ignored them, and rebuked Viewpoint’s claim that its success is wholly attributable to making all sold data available to the public.

McMullin countered by stating that given the sheer scope of business Viewpoint conducts, a few complaints could be expected.

A key cog in TREB’s defence strategy was 38-year real estate veteran Pamela Prescott, the owner of Century 21 Heritage Group in Richmond Hill, Ont., who’s been involved in more than 45,000 transactions. She told the hearing that the reason clients’ sold data information is not published online is because they’ve expressed grim disapproval.

“If it’s necessary, they don’t mind Realtors seeing it, but they don’t want the public seeing it,” Prescott said at the hearing, adding that before discarding the practice altogether, it was brokerage policy to secure written consent before publishing sold data online.

Prescott said it was brokerage policy for both buyers and sellers to agree to publishing that information online for the public to see, and that, by her estimate, only five to 10 per cent consented.

Another witness during the hearing was TheRedPin.com Realty, which operates a VOW that had conducted $325-million in business at the time its co-founder and chief sales officer, Tarik Gidamy, took the stand in September 2015.

“Given the nature of this trial, having the ability to extract (MLS) data would do wonders for me,” Gidamy told the tribunal. “TREB is there to serve its members, which they do well, but there are some members that want to do better.”

CREA was granted intervener status at the tribunal.

“CREA has a valid interest in making sure it is not associated with a violation of privacy laws and regulations,” said CREA counsel Sandra Forbes during the tribunal. “There is a difference between disputed fields being available for everyone, who may have no interest in buying or selling (real estate), or for brokers who can use the information and disseminate it at their own discretion.”

But the bureau took aim at CREA’s participation in the trial, as well as its credibility. Counsel Andrew Little, cross-examining CREA CEO Gary Simonsen, had him confirm that TREB is CREA’s largest member, comprising between 35 and 40 per cent of its membership, and that several members of its Board of Directors were TREB members.

The complaint against TREB was initially dismissed on April 15, 2013, but the Competition Bureau successfully appealed the case to the Federal Court of Appeal the following February, arguing the previous committee improperly defined section 79 of the Competition Act – the “abuse of dominance” clause.

Under the previous section 79 interpretation, it was determined that TREB could not compete with its own members because it is an incorporated trade association. Therefore, it did not circumvent the abuse of dominance stipulation.

“Allowing the tribunal’s finding to stand could leave a significant loophole in the application of the Competition Act,” then-interim commissioner of competition John Pecman said in a May 14, 2013 statement. “While most trade associations comply with the Competition Act, we are concerned that, if the tribunal’s decision is left to stand, trade associations may be tempted to develop rules aimed at preventing or eliminating potential new forms of competition.”

The case resumed in September 2015 in Toronto and was presided over by Chief Justice Paul Crampton.

With files from Neil Sharma and Tony Palermo

  • TWH

    Here is your warning OREA members. http://www.reco.on.ca/registrars-bulletin/advertising-sold-properties/

    Do you really think RECO with dozens of online documents recording their direct instructions for over a decade on the publication of SOLD data is going to try and back pedal and say using it to drive business to your website through any type of promotion of any sort, is possible?

    Do you really think any consumer in Ontario who reads this decade of warnings to registrants is going to now say OH its deceptively used to generate business leads and its OK. Do you really think RECO will say you can deceive and mislead the public that your website is the only one in the world that is not an advertisement for your business?

  • TWH

    RECO Question: Can a Registrant in the Province of Ontario publish a selling price without the Buyers written informed consent?

  • TWH

    RECO Question: Can a Registrant in the Province of Ontario disclose the Pending Sold price of a home without the Sellers written informed consent?

    Informed consent changed in Ontario in 1989, 1995, 1996, 2003, 2005, 2009, 2010 and then drastically and most of all in 2013. So be sure the instruction RECO gives you back cover each of the changes made on each of those years.

    Informed Consent required from a Seller with the decision of the CB:
    -I understand access to any mls system listing information posted about me is now possible through the supplying of an anonymous or even fraudulently identified email address only
    – I acknowledge anyone in the world can access any of my personal information posted through any mls system in Canada
    – I understand that if my name is attached to my address on any other internet database it can then be cross referenced against my mls listing details to obtain a profile of me
    -I understand Revenue Canada can now access my mls listing information without requiring a court order because it is now public access
    -I understand the property assessment office can now access my mls listing information without requiring access to my home
    -I understand banks and other lenders can access my mls listing information through mls system access with a anonymous/fraudulent identity email account authentication process
    -I understand my Listing Brokerage has no control over who or how my mls system listing information is distributed
    -I understand that 3rd party non-registrants will have unhindered and open access to my home’s listing and sales details through a simply non-authenticated validation of an anonymouse email address

    – I agree to not hold my Listing Brokerage or its representatives legally responsible for any financial or personal damage done to me or my family as a result of their inability to prevent the unathorized distribution of my personal and financial information, as a result of how the mls system rules have been modified.

    Now the fun part. Contact RECO and ask them if you can get this waiver signed without a lawyer being the recommended path.

  • Alan M.

    “The tribunal reached that conclusion after finding, among other things, that the VOW restrictions have substantially reduced the degree of non-price competition in the supply of MLS-based residential real estate brokerage services in the GTA,”

    When one takes the time to review some of the history of the Competition Bureau of Canada, one of the points you’ll discover is that the Competition Bureau has had a grim track record of successfully pursuing matters where Abuse of Dominance was at issue. The main problem has been in even finding something in this regard to pursue, as I understand it. One established Ontario based lawyer (from a prominent firm) even commented publicly and online, some time ago, that it wasn’t good for the Competition Bureau of Canada to not have a certain measure of success as it relates to the Abuse of Dominance provisions around successful prosecutions.

    Regarding the first paragraph I’ve quoted. The subject of “non-price competition” can be viewed in two ways: from a perspective of service to a consumer and, in this case, from the perspective of how a REALTOR may want to prospect for new customers or clients — both topics of which are matters of Provincial Regulation. In order for the Competition Tribunal to make a determination along these lines, they must also take the position that the type of service that they are advocating must be in the best interests of consumers. In this case the Competition Tribunal seems to be making a value decision that doesn’t have anything to do with price! I think we must ask ourselves if this “dog and pony” show, conducted at the taxpayers expense, was really ever about competition.

    There has been a lot of talk about: TREB, privacy, copyrights and the list goes on, but what about a seller’s rights — do they not have any? When a seller agrees to certain use of the data by their broker, and the broker’s Board, why is the seller not entitled to stipulate that they don’t agree to have the data made public and have their wish is this regard respected, as far as their broker etc., is concerned? Land Registration data-bases are a separate matter, as seller’s are not contracting directly with these Provincial entities. At an auction, what you pay for something can even be semi-private — if you’re not sitting in the audience.

    The subject of VOW’s was also clouded by the fact that the acronym was used generically to describe all manners of this concept. There was no open acknowledgement that the “O” in the middle could either be referring to an “office” or an “organization” — the difference between the two is like night and day — large verses small! One of the other submitter’s here has said: “Why did the Competition Bureau (CB) stick their nose in where most realtors think it doesn’t belong? CB’s purpose is, among other things, to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy, and to provide consumers with competitive prices and product choices.” The precise nature of a VOW “office or organization” and the cost of each is extremely pertinent to the question of “equitable opportunity” and it simply was never addressed by the Competition Bureau or the Tribunal.

    As Canadian’s, I think we need to ask ourselves when do we or should we trust a judicial or quasi-judicial ruling, when we know there are heavy political overtones. Was this matter really ever about the Competition Act, or was it about the Competition Bureau?

  • Gary Little

    I believe that all the CB is saying is that real estate boards should NOT be allowed to prevent their members — who are operating legitimate VOWs — from disseminating sold (or other non-confidential) data to those who access VOW sites. So this ruling favours those innovative REALTORS who wish to enhance the real estate buying (and selling) process by providing more data to the public — without members of the public having to send the REALTOR an email or phone him/her. I have no problem with that. It’s just another business model.

    In my view, what Bill McMullin has done in Nova Scotia is spot on and is needed in all provinces. CREA/Boards apparently won’t do it, so they have to step aside and leave it to someone more innovative to give the public what they want.

    As of yesterday, I have now extended my VOW to include sold data in the market area I serve. In principal, I could also support the whole of Vancouver and the Fraser Valley but “I’m pretty tired… think I’ll go home now.”

    Gary Little, Royal LePage Sussex

  • TWH

    I suspect the following Fragmentation of the home selling infrastructure in Canada to now commence as pro-business decisions to counter this decision must legally now take place.
    1) Centris will leave CREA asap
    2) TREB like all boards has told CREA NO to their mls system servers and any hopes CREA held onto that realtor.ca would become a single national mls system has ended. Obviously TREB with 1/2 CREA members and payments does not have a Board of Directors legally to hand CREA the tools which if they give them to ComFREE they will be forced to give them to CREA one lawyer at at time.

    3) the REALTORS of BC movement just died and FVREB who was the only association in BC wise enough to remove itself from the movement has now been proven correct.

    4) Franchising Corporations like C21, remax, brookfield and realogy certainly are not going to let a small player like Viewpoint even having the remotest chance of taking profits their own shareholders demand.

    5) BREB, MREB and DRAR members are probably looking at OMDREB right now and wondering how stupid we were not to see this coming. Certainly the presidents of those associations are sharing right now!

    In the end it will be Consumers and Governments who lose. Governments should now expect to have to purchase ( you know like they do from CREA right now) around 100 data sets monthly and the data that is provided will no longer be able to be easily combined into an aggregate. Appraisers and Banks are in bigger trouble because that normal 3-6 month pending to close timeline avoided by accessing a single mls is now probably not possible.

    How the current data held on mls systems will be navigated as the fragmentation takes hold I can only dream is a lawyers most sought after case.

  • cseepe

    The breaking of the TREB and MLS stranglehold on the real estate industry is a godsend. Yes, I expect all kinds of flaming from the real estate morass but, despite most everyone’s profound sense of indignation about copyright and ownership infringement (the grass roots realtors didn’t seem to care about TREB’s ‘privacy’ argument), the issue isn’t about whether intellectual property (IP) and privacy rights have been violated, but it’s about how TREB used that IP to compete UNFAIRLY in the marketplace.

    TREB’s current MLS system, even with is aesthetic (but hardly functional) upgrade, is a technological dinosaur. There are amazing, even mind-boggling, innovations that could be incorporated to empower realtors with powerful competitive advantages that no end user could possibly match. TREB has the means to create incredible value propositions for its members. Yet here TREB and many of its constituents sit wallowing in the past about the investment they already made and how it’s unfair that they should have to invest more to stay current … and competitive.

    Why did the Competition Bureau (CB) stick their nose in where most realtors think it doesn’t belong? CB’s purpose is, among other things, to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy, and to provide consumers with competitive prices and product choices. Consumers (which every realtor is as well) have rights that supersede the rights of manipulative organizations bent on corralling the revenues of an entire industry and imposing their view of how things should be, and be done. If this was a political conversation, we’d be talking about dictatorships and tyranny.

    This legal action isn’t anything new. Companies like Bell and Ontario Hydro, who got too big for their britches and arrogant in the manner in which they conducted their businesses
    (and controlled their prices), were shown the error of their monopolistic ways.

    Canadian Organized Real Estate (CORE), especially TREB, must adapt, change and re-invent itself or be inevitably replaced by the sea change of technology and multi-billion dollar technology giants that are bearing down on it. The list of crash sites of once ubiquitous industries, skill sets and their related technologies is lengthy—typewriter, slide rule, weaving loom, vinyl record, folding map, floppy disk, photo film, 8-track/cassette, CRT, public pay phones, VHS/Beta, dot matrix printers. Real estate and the MLS as we know it will be taken away from us by public demand if our industry doesn’t embrace the change. Realtors as we know them today WILL become the elevator operators and coal delivery people of yesterday.

    TREB’s non-transparency as a ‘not-for-profit’ organization is troubling. It has repeatedly acted in its own self-interests, sometimes at odds with the voiced but unheard wishes and interests of its members. How many members voted that TREB should spend significant membership fees battling the government? Oh, right … they were elected(?) to make that decision for us.

    Taking away the exclusivity of the MLS will greatly impact the gatekeepers of that data (especially TREB and other real estate boards) but it will play only a minor role on realtors who provide a true value proposition to their clients. Now, any realtor whose only contribution to a real estate transaction is knowing how to get information from the MLS is doomed.

    Now, think about how many CORE entities have their hands in your pockets, demanding that you pay upfront for services whether you’re making a living from the business or not—OREA dues, CREA dues, RECO license, RECO insurance, brokerage fees (you HAVE to belong to a brokerage to be licensed), franchise fees, mandatory education and update fees, and of course, TREB fees—and that’s all before you invest one dollar in your career and business. Things would be very different if those organizations (RECO excepted) were tied to the quality of
    realtors rather than the quantity of realtors.

    Breaking the MLS stranglehold will dramatically improve our ability to overcome the greatest threat to our profession—our industry’s lack of professionalism. CORE will have no choice now but to raise the bar of professionalism in order to combat the threat from without. I can’t wait to see the day when that happens.

    A wise person once said that, before you get angry you should walk a mile in the other person’s shoes (they went on to say that … then you will be a mile away from that person, and you will have their shoes). The moral? Understand what’s driving the change, the threats and the new opportunities, then build tools and processes that will keep the parasitic invaders at bay.

    (PS: CMHC—take note—some of your business practices bear an unhealthy parallel to what’s happening here with TREB.)

  • It’s not a Multiple Listing SERVICE, it’s a Multiple Listing SYSTEM designed and paid for by REALTORS to facilitate the collaborative efforts of the Real Estate Profession in matching one another’s buyers and sellers toward a successful transaction to the mutual benefit of those buyers and sellers.

  • TWH

    Ross Kay here folks. My family and I were never members of TREB but our Copyrighted works are published by TREB under an explicit copyright licensing agreement we made with TREB. Like our ads in the news papers our Listings that were advertised to TREB members through the TREB MLS system were never licensed to be seen by or used by any consumer. Members could use our creative to promote our listings to their clients but give them access and open our creative up to being stolen was never part of the agreement. We did not license Post Media or Rogers or any of the newspapers our listings were marketed on with similar copyright license agreements either so those ads have remained our copyrighted works as do the listings still stored on TREB servers.

    BTW CREA’s legal team repeatedly asked all Real Estate Boards in Canada and all its sales rep members to never refer to an MLS database because no such thing has ever existed. TREB servers may store millions of copyrighted works but a server is not a database.

    The listings we created took on average around 12 hours to complete from start to finish. Our billing rate at the time was $123/hr. Today those $1500 creations are worth around $8000 each to 3rd party data aggregators if they ever get released. At great cost to me the measurements, property verification, Listing Price, photography, comment creative and even the final negotiated selling price were all data owned by me and no TREB the copyright we agreed to never included public access.

    Somehow TREB failed to mention copyrights and how the current “unhindered” license agreement on copyright they are using cannot enforce TREB rights to use because TREB has failed to communicate to its members what the current clause in the MLS rules means.

    I suspect a Class Action lawsuit against TREB should immediately be started if TREB even considers breaking their copyright agreement with its retired members. Those works are owned by them and no one else. No Rogers, No Bill McMullin, No RE/MAX you cannot steal the copyrighted works of others no matter how ignorant TREB staff are to copyright law.

    Any TREB member who questions my comments should reach out to Canada’s foremost academic on Copyrights Michael Geist up in Ottawa. Copyright law protects every business in Canada and has some of the strongest and longest case history in Canadian courts. You cannot bypass copyright law by asking your members to agree to a contract they were never explained or never had proper legal council to consider. This is really insane.

    This is what happens when NO ONE in Canada actually understands what and how the home selling infrastructure operates. This is what happens when secrecy and ignorance prevails over openness and education. TREB and CREA alone are responsible for this situation.

    The ignorance of paid staff continues to defy logic. They may be nice people but they are ignorant to how a professional real estate sales business is run, how it is valued and what assets it actually owns.

  • Deedar Ghatehorde

    There is one key issue here — Why should the Realtors pay for the membership of TREB, whenTREB provides Assimilated data to the public free of charge. The Public should pay for the data, as we pay for Title search and MCAP. This should also help subsidize our membership. If all information is made available to the public, they should pay for the collection of Data for accessing it. Why should only the Realtors pay for it?

  • Fred W Drewry

    Correct Omer. For over 20 years I have paid TREB, OREA and CREA annually to manage historical and current MLS data so that I could effectively provide an expert service as a Professional Realtor. In my mind that data is and was OWNED by us. Messing around with the privacy issue was never an issue in my mind. The fact we own the data and manage it as we see fit was the only issue. What a waste of my/our money. F W Drewry TREB member.

  • Andrew Crook

    I think this is actually a good thing. The value of a good REALTOR isn’t in knowing the sale prices in a neighborhood. There is so much more to selling a property then knowing what the house down the street sold for.

  • Omer Quenneville

    I’m not sure why we fought this based on privacy and not on propitiatory ownership.