By Tony Palermo

The seventh and final day of the evidentiary portion of the Competition Tribunal hearing between the Commissioner of Competition and the Toronto Real Estate Board (TREB) began in Ottawa Wednesday with the cross-examination of TREB witness and economist Jeffrey Church.

Church spent the morning taking questions from Competition Bureau counsel John Rook, who looked to clarify some of Church’s opinions and cast doubt on aspects of his report.

In one example, Rook challenged a part of the report where Church writes that list prices are good substitutes for solds and pendings since they incorporate market information for the search phase.



How, wondered Rook, could list prices be good substitutes for sold and pending prices in a market like the Greater Toronto Area where he is aware of Realtors who purposely under-list a house price in order to generate a bidding war?

While much of the morning exchange dealt with various related economic questions and statements contained within Church’s report, Rook also questioned him on different occasions about TREB members’ access to the MLS system.

In the first exchange, Rook had Church admit that there was no other MLS or service provider that provided anything close to the level of information available to a TREB member within the MLS system.

Revisiting the issue later, Rook asked Church if he was aware that TREB, from time-to-time, has exercised its authority to require its members to cease-and-desist from activities the board considers contrary to its rules.

“With respect to TREB MLS data, yes,” replied Church.

Rook then asked Church if he was aware that the board wrote to virtual office website (VOW) operators and threatened to cut them off if they didn’t signal they were in full compliance of the board’s rules, to which Church again replied that he was.

“And (the board) did that even when there was no evidence (the VOW operator) was in contravention of the board rules?” asked Rook.

“I don’t know that.”

“Are you aware that one of the companies that was not observing the rules was operated by the president-elect of TREB?” asked Rook.

“I became aware of that.”

“Were you aware during the writing of your report?”

“No,” said Church.

The Competition Bureau’s position is that TREB stifles competition in the GTA’s real estate market by monopolizing the MLS terms of use, with Rook previously arguing that TREB’s hostile disposition towards VOWs stymies innovative Internet services, which hurts both consumers and TREB’s membership.

After Rook was finished cross-examining Church, the panel asked Church several questions to clarify his economic opinions and to help put his testimony into perspective. Chief Justice Paul Crampton asked him whether he thought consumers are materially worse off by not having access to the information in dispute (sales data), to which Church responded “You don’t have it at the VOW, but you have it at the broker.”

After lunch, Sandra Forbes, counsel for CREA, which has Intervenor status, called CREA CEO Gary Simonsen to the stand. Simonsen spent a little time describing CREA’s Data Distribution Facility (DDF), which enables CREA members to easily disseminate up-to-date MLS listing content to multiple websites. Simonsen also gave a detailed, live demonstration of how the realtor.ca website works and the various ways it can be used to find listings or contact an agent.

Once he was finished, Competition Bureau counsel Andrew Little asked a few questions, that focused on the number of people who use the realtor.ca website. It was reported that only three per cent of Realtors access it.

Little also noted that CREA tracked the number of people visiting the realtor.ca website by unique IP address, a set of numbers that represent a unique location identifier of sorts on the Internet. He drew attention to the fact that there was a decrease in the number of people who visited the realtor.ca website between the first four months of 2015 versus the same months the year before.

He also emphasized that the reported total number of users accessing the CREA website didn’t necessarily mean unique users, even if they were being reported by a unique IP address. In fact, Little stated that he believed the number of visitors CREA reported as visiting the website could be grossly overstated since it’s possible a user would access the website from a personal computer at home, a computer a work and a mobile device such as a phone or tablet, each which would have their own unique IP address.

Little also noted that TREB, as CREA’s largest member, represents between 35 and 40 per cent of CREA’s membership, and therefore, have the greatest number of votes when electing CREA’s Board of Directors.

“I don’t want to get into the mathematics, but safe to say TREB has the largest number of votes?” asked Little, to which Simonsen agreed.

Little then confirmed that, in comparison, the Ontario Real Estate Association has only one vote, also remarking that of CREA’s 17 current sitting  directors (including CEO Simonsen), three are former presidents of TREB and three are former presidents of OREA.

Justice Denis Gascon asked Simonsen about earlier testimony that identified CREA’s concern about a loss of credibility in the eyes of consumers if confidential information is made available. Simonsen responded that in Canada, MLS is a trademark and that he knew U.S counterparts were envious because they do not own the trademark there.  Simonsen continued that MLS was a great selling tool and that anything that would imperil public confidence in it is of concern to CREA.

“We want to ensure that we don’t impact (public confidence in MLS) in a negative way,” said Simonsen. “We want to continue with a respected trademark.”

“And the sold information is a concern to you?” asked Gascon.

“We have concerns with that information in a public database,” said Simonsen.

The panel asked Simonsen why he earlier testified that customers weren’t asking for sold information to be made available on realtor.ca, but that apparently people in the U.S. wanted it on realtor.com.

“I can’t express an opinion on realtor.com – our focus is realtor.ca,” said Simonsen. “Sold data isn’t something we’ve heard back from customers that they’d like to see.”

The day ended with TREB witness Fredrick Flyer, executive vice president of economics consulting firm Compass Lexecon Inc. Flyer prepared a presentation that disputed parts of Competition Bureau witness Gregory Vistnes’ expert report. Among Flyer’s criticisms were that Vistnes, in his opinion, ignored empirical evidence on competitive benefits, dismissed potential privacy concerns, and provided no analysis on potential harm in his analysis.

Final submissions in the case are set to take place in Ottawa on November 2.

20 COMMENTS

  1. The MLS®
    (Multiple Listing SYSTEM not SERVICE… “SYSTEM) was built and paid for by REALTORS® to facilitate the sharing of one another’s listings in a collaborative effort to get the job done for the client. It is a proprietary system developed and paid for by an industry to be able to provide a better service to its customers.

    This business isn’t about full page full colour ads in publications or websites. This business is about collaboration between knowledgeable practitioners helping their clients achieve their real estate goals. The MLS® is an interconnect between Listing and Selling Agents, it really has very little to do with the public. It is how we share internally… how we collaborate to achieve our clients best interests. That’s what we do and the MLS® is a tool we designed and paid for, and continue to pay for, to help us get that job done.

  2. I agree with Cheryl, REALTOR’s should be tired of being targets!

    I must honestly say that my impression of what has appeared on the pages of REM, as it relates to Tony Palermo’s article’s herein and his manner of covering the current matter before the Tribunal, is such that I am troubled by what I see as a serious lack of balance. Consider the following, which is the last paragraph in the subject article:

    “The day ended with TREB witness Fredrick Flyer, executive vice president of economics consulting firm Compass Lexecon Inc. Flyer prepared a presentation that disputed parts of Competition Bureau witness Gregory Vistnes’ expert report. Among Flyer’s criticisms were that Vistnes, in his opinion, ignored empirical evidence on competitive benefits, dismissed potential privacy concerns, and provided no analysis on potential harm in his analysis.”

    When Tony Palermo introduced REM reader’s to Mr. Vistnes in the October 05th., 2015 article, he said the following: “…called expert witness Gregory Vistnes, vice-president of…”, and in the above mentioned quote Tony Palermo referred to Mr. Vistnes report as an: “expert report”. Conversely, Fredrick Flyer who is also an Executive Vice President of his firm, is just referred to as: “TREB witness Fredrick Flyer”. For some reason the TREB witness isn’t referred to as an “expert” by Tony Palermo, but the Competition Bureau witness is and so is his report! Were REM readers supposed to conclude from this that the Competition Bureau’s witness was an expert witness, while TREB’s witness was not? I suspect that the TREB witness should also have been regarded as an expert witness.

    In addition, presumably CREA and TREB counsel had access to Frederick Flyer’s (expert, my word) report, however if Gregory Vistnes was cross-examined regarding any of Mr. Flyer’s findings, we wouldn’t know this from what Tony Palermo has reported, here on REM.

    I feel there was a pattern present in Tony Palermo’s reporting (articles) regarding the Competition Tribunal hearing, where REM’s readers were usually given the conclusions to the accusations made by Competition Bureau counsel against opposing witnesses, however when it came to accusations leveled from the opposite side of the field, conclusions seemed to be very scarce! Consider the following paragraph from Tony Palermo’s October 05th., 2015 REM article:

    “During cross-examination, TREB counsel David Vaillancourt spent most of his time going over Vistnes’ previous testimony. In an effort to establish substantiality, Vaillancourt argued that while Vistnes was given access to certain U.S. MLS data for an earlier engagement, he didn’t use any of this U.S. data to help to qualify his statements for these proceedings.” For some reason Tony Palermo didn’t report on the conclusion to the aforesaid exchange. Did Mr. Vistnes acknowledge that the TREB counsel was correct in his assertions or did he not — why didn’t Tony Palermo give REM readers the conclusion to this exchange, as he usually seemed to do when TREB witnesses were being held to account?

    We do need REM to be an important medium for bringing forth healthy exchanges and informed commentary on organized real estate in Canada. Not only do we need better reporting than what Tony Palermo provided on this very important matter, we are entitled to it!

  3. REALTORS ARE TIRED OF BEING TARGETS!

    Not only are our efforts scoffed at by the Competition Bureau .. they have to add fuel to the fire and put it out there to the public that we don’t deserve to be paid! They seem to forget that we do ALOT of work for free. Do they? Again, how was the real estate industry established? Certainly not by the Competition Bureau! This is not a communist country…we have rights! Don’t shut down everything! Realtors have already suffered enough by cutting off every possible way to contact the general public. No cold calling, no contacting expired listings, no email contact without permission, and it goes on and on..thanks to the likes of the “Competition Bureau!” etc. etc….but they want OUR money to fund information to the general public?? go figure! Maybe they want our first borns too. Frustration? no not in the real estate industry! it’s a cake walk…try it some time.

  4. I’ve said it before and I will say it again, get rid of CREA and Realtor.ca, we don’t need it. The data we collect and provide on millions of homes is the product of Realtor labour and I am furious that data is given away by bureaucrats for free to hundreds of other entities with no remuneration. We own it! As such keep that data at the local board level. If they want it they can damn well pay Real Estate agents for it or do the legwork themselves, and that includes the general public. Sometimes it can take 8 hours of labour + car expense to pull a listing together. This is not a philanthropic endeavour! It’s a business and we need to turn this business model upside down. We have been hoodwinked! Only Buyers on a Buyer Representation Agreement or Sellers on a Listing agreement get access to our data for free and that’s how you protect the privacy and ownership of our data without it being scattered willy nilly everywhere. Anybody else pays. And unlike other commentators on here like HWR, I’m not afraid to use my real name for “privacy reasons”, It’s a cop out and completely gutless. Who knows, could be CB troll.

    • Chris,

      I can certainly understand why you would want to dump CREA and REALTOR.ca, and if they were to go, they would need to go, together. The problem with this would be that the challenge we face now, on a National level, would just come back around and at us, at the Provincial level, and had we already lost at the National level it would be like shooting dead-ducks in a barrel, for the Competition Bureau of Canada.

      What we need to do is fix CREA. We need to start this process by insisting on having a CREA President who isn’t reluctant to speak up and out regularly, about what members are saying and what seems to be clear from a consensus perspective. When it’s clear there isn’t any interest in pursuing or establishing any consensus, we are all the more vulnerable to the CREA Bureaucrats attempting to lead the CREA Board of Directors.

  5. With all due respect, TREB data may be inaccurate and incomplete

    There are any number of instances where the reported sales price may differ from the actual, closing, final price paid due to negotiations about deficiencies etc after the deal is firm and/or special financing clauses in the offer that affects the final price

    Also, TREB data may not reflect private or non-board sales

    There are also many instances of the TREB listing not showing the full, legal name of the owners, incomplete/inaccurate legal descriptions, etc

    The only source of complete and accurate information is TERANET which may be accessed by a subscription

    TERANET should be the focus of CB- get them to open up their data base to the public, for a fee- one stop shopping for all Ontario property info

  6. WHY DOESN’T THE PUBLIC PAY ALL THE FEES TO ACCESS THE INFORMATION LIKE THE REALTORS DO????

    What is the point of all this bull? Why doesn’t the competition bureau just erase all the jobs in cananda?? Real estate fuels the economy and how would they like it if their jobs were taken away? Start charging the public a fee as well! Realtors have to pay big $$ to stay in the game and access this information. You say FAIR?? Don’t think so! Go home competition bureau…and stay there! p.s. how did they buy their homes? through a realtor? ah maybe!

    • Cheryl,

      Good letter and to the point. It does cost us considerable to participate in this industry. The cost of accessing our data is essentially tied to membership. Unless, you can afford to establish and operate a full-blown VOW (Virtual Organization Website) on your own, you can’t even begin to give away the volume of free data that such a website is capable of — even if you wanted to. The Competition Bureau of Canada is supposed to be about increasing competition, not reducing it — they’ve lost their way!

    • Beautifully said Cheryl, no one cares that Realtor fees and dues have paid for and built this system…..we need less government, less bureaucracy…..the legal profession has always been jealous that we get higher fees than they get for closing a transaction and now it appears they get to rule on our business is run….not fair at all.

  7. Hey here’s a listing submitted by one of my fellow contributors;

    Gorgeous home sitting on a really nice lot that’s pretty close to shopping and transit. It’s got really nice upgrades which I cannot describe here for privacy reasons. It’s located in the greater Toronto area and may or may not be close to water. And there may or may not be parking but for security reasons we really cannot describe the property. If interested in this really great property and want to know what it looks like and the asking price please forward your information along with picture I.D and a bank statement and letter proving you can in fact purchase this home. At such time secure mail with your password, which will expire within an hour upon opening, will be delivered to you courtesy of Brinks Canada. Thank you for considering our gorgeous family home…oops! gorgeous home.

    Listing courtesy of a licensed broker registered with TREB.

    • Howdy, my name is Hullava Wonderful Realter and I got my rear estate license yesterday. I just put my uncle’s house up fer sale for hmm. I told hmm “don’t yu worry, everyone across Toruntu will no everthin abut your house.” I put my sign up last night, opened the front door and hung up an open house sign before I left to go home and sleep.
      Got a call from a few strangers this mornin. The police, some lady called the Piracy Commy, the President of TRUB ( whatever that is), some guy called Joe and my uncle. Guess he came home to a party I never got an invite to.

      I furgot my uncle had moved out and my antie was thur all alone. She didn’t wanna party. I guess the nayburs all walked in an saw my Ants divorce peppers on the table. Now everyone knows my uncle ain’t as rich as he pretends.

      I hope I get an offur today. Maybe a bedding war will happn befur I get all my papers turned in. Dame it. I lost the keys. Lucky I left the frunt door open

  8. HWR, Please provide me with the MLS number of one of your listings. I will then post right here on REM what privacy problems you would face. I will also call up your seller and provide them the same details. I will give them the actual name of a Toronto police force detective to call and get the truth on the risk you are suggesting does not exist.

    Now if you have nothing to fear and assuming you are not the owner of a moving company or maybe a mortgage broker who wants unfettered MLS access, they provide one MLS number.

    • Sorry Ross I use HWR for a reason. But you can provide us with that one page last of all the breaches. I compared that to a campaign of fear displayed not even by our political parties. Better yet, why don’t you answer some of the questions asked of you that you always dance around or avoid.

      • You use it for privacy reasons – to protect anything about you being known in here. It’s a name that you’re concealing for privacy reasons, but you’re happy to have a homeowner’s information that involves hundreds of thousands of dollars available for everyone to see.

        Talk about hypocrisy!

  9. Clearly the CB stood out today, just as they have every other day. I struggle with Alans theory below and Ross’s struggle with understanding why this is happening. It happening because the privacy defence is flawed and weak. Ross you cannot defend it. Alan clearly cannot defend it. Honestly, I feel TREB is just present to say to membership that they tried.

    I just hope that CREA is reading the writing and preparing to take Realtor.ca to the next level in its evolution. We have to capitalize on the trust that Canadians have in Realtor.ca and make sure that we are the very best and most informative site period!

    We have a distinct advantage when it comes to how Canadians perceive us, all the others companies looking to use MLS data are doing it for profit-we are not. That means selling advertising and selling leads to our own industry members, who by the way quickly jump onto the competitors band wagon, to generate a profit. Let’s start moving forward, because right now TREB is just flogging a dead horse.

  10. One of the key points that has come up at the Tribunal has related to “Privacy” in terms of to what extent organized real estates collected data (precedents), can be reasonably offered to real estate consumers, or withheld, to the discretion of those organizations whose members have accumulated said data. However, has the Tribunal overlooked another aspect of privacy that could be considered as being integral and relevant to this matter?

    I feel it is important that a key distinction needs to be acknowledged between the operational restrictions that are placed on users of the DDF (Direct Data Feed) and IDX (Information Data Exchange) verses what is applicable to a VOW (Virtual Organization Website). User’s of the DDF and IDX systems are typically prohibited, by the terms of said systems, from displaying the property listings in a way other than what the actual listing brokerage has prepared to describe or market their property listing — in other words, a cooperating brokerage should not add or delete information from what the listing brokerage has done. Since a VOW has likely created their own system (internet platform), and when they apply a “terms of use” they may not necessarily be restricted from adding information to a competitor’s property listing, when it is displayed on the VOW Brokerages website.

    One example of the kind of information that a VOW Brokerage might place or add on their system could be an “average price” for an area, and display said “average price” on a constant banner below all the property listings — including those of competitors. For example, a competing Registrant or Practitioner could have a listing offered at a price of: $500,000.00, and the “average price” for the area might be shown by the VOW as: $250,000.00. Would the aforesaid situation likely induce a consumer (customer) towards running out and viewing such a property, or would they be more likely to dismiss it? Would we expect a Customer of a VOW to understand that an “area” can be an: entire MLS, numerical, geographical district, a sub-district of an overall MLS geographical district, but not likely to be the: particular subdivision involved, nor a particular street — where all the homes have water-frontage and the average sale price for the street is actually: $525,000.00?

    Privacy is also defined as: “freedom from unauthorized intrusion.” Should any Brokerage do anything that might adversely effect the sale of a Competitor Brokerages property listing, should this not also be viewed in the best interests of organized real estate and consumers, as a: “privacy issue”?

  11. “Little [Competition Bureau counsel Andrew Little] also noted that CREA tracked the number of people visiting the realtor.ca website by unique IP address, a set of numbers that represent a unique location identifier of sorts on the Internet. He drew attention to the fact that there was a decrease in the number of people who visited the realtor.ca website between the first four months of 2015 versus the same months the year before.

    He [Andrew Little] also emphasized that the reported total number of users accessing the CREA website didn’t necessarily mean unique users, even if they were being reported by a unique IP address. In fact, Little stated that he believed the number of visitors CREA reported as visiting the website could be grossly overstated since it’s possible a user would access the website from a personal computer at home, a computer a work and a mobile device such as a phone or tablet, each which would have their own unique IP address.”

    I find the above quoted statements of Mr. Little (two paragraphs) to be particularly astounding, in terms of trying to understand, once again: what is the Competition Bureau’s point? Whenever I have worked with a client, I don’t expect them to have interest whatsoever with REALTOR.ca. A drop in the visitor count to REALTOR.ca should be evidence that real estate consumer’s don’t feel the need to waste their time on the internet, when they have retained a real estate Registrant or Practitioner to do all the work that is required to buy or sell a home. A low or lower visitor count on REALTOR.ca, should be celebrated as an indication that real estate consumer’s trust us to do our job, and don’t feel the need to gratuitously waste their time. It’s painfully evident that the Competition Bureau of Canada hasn’t taken any time or doesn’t have any interest in understanding organized real estate.

  12. Good Morning,
    More testimony from people not qualified to discuss issues…..
    TREB Economist is on the stand, someone who does not even know how to calculate the number of first time buyers who bought through a TREB member in 2015 so far this year. A person who cannot explain why home prices rise naturally in a housing market. A person who fails to understand the basics of realty in any way. A person with no post-secondary education on real estate.
    Then the CEO of CREA takes the stand. A man who refuses to simply disclose the full truth. CREA wants TREB sold data and the sold data from every MLS system and they are praying this case is won by the CB.
    Members of TREB do not even know why CREA is not provided sold data and for some reason this too was missing from today’s testimony. How many TREB members are even aware CREA and OREA are the natural competitors to TREB??

    Remember not 2 years ago CREA tried to take realtor.ca ownership away from members through a national vote to create a separate techco. REM is where that effort was in fact brought to national awareness and stopped.

    It is my opinion CREA testimony harmed TREB today!!

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