The Competition Tribunal ruled Friday that CREA’s policies do not prevent mere listings and do not discriminate against members who offer them. The tribunal dismissed a complaint from the Commission of Competition that said CREA’s policies contravene the consent agreement signed by the parties in 2010.
At issue are CREA’s rules that prevent the display of a seller’s contact information or the reference to a private sale on a webpage (such as a Realtor’s or brokerage’s site) that is linked directly from realtor.ca. CREA members who offer mere postings must create an extra step – a “buffer” webpage – before the contact information can be displayed.
The Commissioner stated that CREA should not be allowed to restrict where the seller’s contact information may appear on a website – whether on the first landing page linked from realtor.ca or anywhere else on the site.
Robert Herr, owner and broker of record of The For Sale By Owner Depot and FF4 Property Postings Inc., stated in an affidavit, “Sellers certainly do not like the buffer pages we are required to add in order to comply with CREA’s rules, not at all. I know this in part because sellers get very cranky when they find out and demand an explanation. They often tell me that including the buffer page and not immediately displaying their contact information will interfere with the possibility of a sale…”
But in the Competition Tribunal’s decision, Chairperson Donald J. Rennie says that since April 2011, Herr’s business has listed more than 1,000 mere postings to the MLS System and “he concedes that he can only point to one incident where a client apparently refused his services because of the necessity of a buffer page.”
Rennie writes, “Curiously, the evidence of Mr. Herr, called by the Commissioner, corroborates the evidence of CREA.” He says Herr’s website indicates that the link to private seller information is “seamless and one that is widely recognized by the public.”
Rennie adds: “The Tribunal is not satisfied, on a balance of probabilities that the rules discriminate against members who offer mere postings. The evidence addressed by CREA suggests to the contrary, that even a novice user of realtor.ca would have little difficulty in finding the information under the existing rules and design of the website.”
Rennie says he agrees with CREA that the “member-to-member nature of the MLS Systems underlying realtor.ca” cannot be undermined by the consent agreement. “Member-funded services are not required to promote private sales, something antithetical to the CREA member-to-member business model,” he writes. “The Commissioner’s interpretation effectively places a private seller in the same proximity to a prospective purchaser as a member.”
The full decision can be read here.
The Competition Bureau’s complaint against the Toronto Real Estate Board (TREB) concerning the board’s MLS policies is scheduled to be heard on Sept. 21.