tribunalThe Competition Bureau’s case against the Toronto Real Estate Board (TREB) is going back to the Competition Tribunal, the Federal Court of Appeal has ruled. It allowed an appeal of an April 2013 decision that dismissed the bureau’s complaint against TREB.

“The application was based on the commissioner’s allegation that a certain rule adopted by the board is anti-competitive because it substantially lessons competition among Realtors in the Greater Toronto Area who are members of the board,” says the court’s Reasons for Judgment, written by Justice J. A. Sharlow.  “The tribunal dismissed the application without considering the merits,” on the basis that subsection 79(1) of the Competition Act doesn’t apply to the board because it does not compete with its members.

The appeal court says the tribunal erred in its interpretation of the law. “I would allow the appeal and refer the commissioner’s application back to the tribunal for determination on the merits,” wrote Justice Sharlow.

The board “disputes many factual and legal aspects of the commissioner’s application, but the tribunal did not resolve any of those disputes because it dismissed the application solely on a question of law,” says the ruling.

The Competition Bureau originally filed its case in 2011 and it was heard in late 2012. The decision was released in April 2013.



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’s April decision stated in “an observation” that another section of the act “might give the commissioner a means to apply to the tribunal.”

Lawrence Dale, who was president of RealtySellers Real Estate at the time of the application and was granted intervenor status at the tribunal, said of the April decision: “This was a classic case of a legal technicality where nothing gets resolved…Once these technicalities are addressed, the fundamental issues still remain to be determined.  How long that takes to get resolved is anyone’s guess.”

Now that the case is going back to the tribunal again, the case has inched one step closer to a final resolution.

9 COMMENTS

  1. An organized industry will have very little ability to define itself, if anyone that comes along can complain that just by
    virtue of the fact their business model isn’t being embraced, is sufficient evidence that the Competition Bureau of Canada needs to jump in. Obviously, there needs to be a reasonable balance between healthy competition, and an organized industry being able to bring its services to consumers in a way that the majority of its members – acting reasonably, and without duress – believes, best reflects on the role of the industry?

    I’m under the impression that the Competition Bureau of Canada doesn’t need to, make a Prima Facie case that a section of CBOC Act has been breached – based primarily on what they see regarding the extent of existing competition. Meaning, the CBOC isn’t obliged to proceed, without placing any particular weight, on the fact that one, or even two, newly proposed business models are not being embraced by an industry – in this case an organized industry. Should such be the case, it increases the risk that the Competition Bureau ends up promoting competition over all other considerations.

    When change is forced on an organized industry, by a government entity – in this case the CBOC – an existing agenda of an industry, is deemed to be of less importance than what is to come. In this case, the significant fail-safe to organised real estate being redefined in a way that isn’t in the public’s best interests, are the provincial governing
    authorities. Whether we can call ourselves professionals, comes down to the extent that consumers respect what we do. The extent that consumers can respect what we do, under these circumstances, largely, comes down to where the provincial regulatory authorities, reactively, draw the line – verses, proactively.

    It would be interesting to see the results of a national survey, mandated to record the number of formal complaints against Realtor’s, since the signing of the Competition Consent Agreement – verses the years prior to!

  2. This whole issue is an interference with organized real estate. An interference with capitalism. Those who oppose the rules of real estate boards simply should become independent and create their own system or network as they see fit rather than use the courts to force a change onto an already fully established system and organization. http://www.wellth.weebly.com

    • I think this has gone on far to long. Belonging to CREA is a membership and we all pay dues. One of the services this membership gives is the MLS system. Which our membership fees pay to ensure the integrity of the information. As individual brokerages we are responsible to ensure that the information uploaded to the system is correct. This is governed by our various and I mean various federal and provincial quazi judicial organizations, which help to ensure the accuracy and security of the information. We are not the gate keepers of the information, however, but we are the disseminators of the information. I feel that as the challenges through the tribunal continue what will result is a corruption of the information. Already we have a mass appraisal clearing house providing information to sites such as ZooCasa. These appraisals are based on market information, in most cases gathered from the MLS system, which the appraisers have access to by joining a Real Estate Board, To me this is selling the information directly to a third party for their own personal use. I am sure that the information that this appraisal clearing house provides this third party is not FREE!! In my opinion this is only one example of how the VOW is going to gather the information. In short the information is already being sold to third parties and where it goes from there is anyone’s guess.

  3. Did you research Nova Scotia’s “Viewpoint”. This website…Brokerage gets every bit of info and more way before it is even loaded up to Realtor.ca. It is a family run business and have and are requesting to be licensed in every province. Have a look at their website and see if you want this in your home town, and many more just like it.

  4. The guns are being reloaded and both sides had better prepare better this time around by addressing the issue from a competitive standpoint. It appears both parties involved in this dispute are focusing on issues that were relevant in 2000 but have little concern with a decision that the courts would render on in 2014.

    If either party gets a educational leg up on the other in this discussion, who wins will be a matter of knowledge instead of conjecture. This is not a Zoocasa/Realty Sellers/Red Pin issue of service offering ability but rather a competitive issue that can be attacked from either side in a very winnable way.

    Just ask the Quebec MLS associations what can be done when you gain the important knowledge you need to have.

    Ross
    http://www.RossKay.com

    • TREB does permit VOW sites, and CREA and TREB passed the rules permitting such displays. The issue is should the public be able to search and see SOLD information and prices? Zoopraisal was fed by Brookfield appraisals, a division of Royal Lepage. SOLD information is not available to download in VOW or IDX displays.

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