By Tony Palermo
Update: The Competition Tribunal’s order has been released and can be read here.
After hearing nearly a full day of oral submissions from lawyers for the Competition Bureau, the Toronto Real Estate Board (TREB) and CREA on proposed remedies for TREB’s anti-competitive behaviour, the Competition Tribunal closed the day by summarizing its general position in advance of issuing a formal order, which is expected Friday after all sides have had an opportunity to suggest the final wording.
On the issue of privacy and consent, Chief Justice Paul Crampton said the tribunal was not persuaded that the existing consents are inadequate to allow the disputed data to be displayed on a Virtual Office Website (VOW), as had been suggested by TREB.
In its written submission, TREB said “the wording of the current consents does not adequately inform consumers of the nature, purpose, or consequences of online dissemination of their personal information.”
TREB lawyers also argued the point during the day.
But Competition Bureau counsel John Rook said a new form of consent would “effectively establish a two-tiered system: what happens on the intranet and what happens on a VOW.”
Rook told the tribunal panel, “This approach (would be) completely inconsistent with your findings. The devil is in the details on this issue.”
The tribunal agreed with Rook that the consents, as they exist, are sufficient. TREB counsel Don Affleck responded that TREB had received separate counsel from lawyers on the issue of consents and complying with the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada’s data privacy law, and was advised that all of the forms currently used would need to be revised.
Affleck said updating the forms could take as long as six months, to which Chief Justice Crampton cautioned that Affleck and TREB should not “take any steps that might undermine the purpose” of the tribunal’s proposed order.
“And, insofar as how sold prices are being posted, we’ll see how the world unfolds,” added Crampton, speaking to the suggestion that PIPEDA compliance officers might take issue with the consents remaining as they exist today.
Another point discussed during the day dealt with the issue of allowing access to the disputed data versus transmitting the disputed data through a VOW data feed. TREB lawyers submitted that TREB would be “unable to safeguard against misuse if the disputed data is transmitted though the VOW data feed,” which raised the eyebrows of the Chief Justice.
“Counsellor Rook said earlier the current data in a VOW data feed is transferred, so all we’re talking about is more data, correct?” asked Crampton.
After attempting a lengthy explanation, TREB counsel David Vaillancourt conceded that it was.
“So, there was no issue with all of that (data being transmitted) but now because sold data is to be included, now it’s an issue?” pressed Crampton.
Vaillancourt suggested that the tribunal consider an alternative remedy to allow TREB to develop a technical solution to provide the disputed data to VOW operators, without transmitting it through the current VOW data feed, so that it remains solely on a TREB server.
“TREB has said it will take six months (to develop a technical solution),” said Vaillancourt, suggesting that if the tribunal found that timeframe too long, TREB would be willing to introduce a good-faith reporting mechanism to show its progress.
In the end after more discussion, the tribunal said that they were not persuaded that there should be any change from the way the VOW feed is currently operating by the addition of the disputed data fields.
“Part of the problem is you had an opportunity to raise this in the hearing, with witnesses present, but now there is no way to know whether the commissioner’s witnesses would find this acceptable,” said Crampton, adding that TREB is putting the tribunal in a position to speculate, which is concerning.
Access to historical data was another area that saw a lot of discussion. In its submission, TREB suggested that any access to historical data should be limited to the preceding six months, on a rolling basis. The Competition Bureau counsel disagreed, suggesting instead that the more historical data that can be offered, the better.
The bureau’s position was also that no historical data should be forced to be deleted from the VOW data feed after a certain period of time, since it would be widely available on the Internet anyway.
After discussion and clarification as to what is currently available and what the order should include, the tribunal said that it would wait for further suggested wording clarifications from both sides so that the spirit and scope of the intended order is not reduced.
“We want people to be able to develop trending tools and whatever,” said Crampton. “There was no specific evidence of a drop-off date but we want (the amount of historical data) to be valuable to witnesses.”
Crampton also agreed that there was plenty of evidence presented during the hearing that showed how important historical data was to the witnesses at the hearing.
With regards to costs, TREB submitted that “in the event that the tribunal’s order increases TREB’s costs in any way, TREB should be permitted to pass along these additional costs as a service fee.”
Tribunal member Wilcor Askanas asked if TREB was intending to pass those costs on to the VOW operator.
“Compliance is going to have a cost that needs to be recovered somewhere,” replied Affleck.
Askanas suggested that if all of TREB’s members have access to the same data, then everyone should share in those costs. He said any cost recovery action should avoid more discriminatory behaviour.
Crampton said that no evidence was presented during the hearing that the costs of including the disputed data fields in the VOW feed were going to be significant. He added that while the tribunal had no issue with TREB recovering their costs from all of its members, the tribunal would be concerned if there were significant costs that TREB went on to recover only from VOW operators.
Counsel for the Competition Bureau was to have their final suggested wording on these and other issues completed and distributed to the tribunal and both CREA and TREB lawyers on Thursday evening. TREB’s lawyers will then have until noon, June 3, to submit their suggested wording to the tribunal, which is then expected to release the final order later in the day.