By Jim Adair

The Toronto Real Estate Board’s long-running battle with the Competition Bureau finally appears to be at an end, but there are still a lot of questions about how it will impact local boards and if more legal action is coming.

The Supreme Court of Canada was TREB’s last chance to appeal the Competition Tribunal’s ruling that the board, by not including sold and other data in its virtual office website (VOW) feed, had engaged in anti-competitive acts. By declining to hear the appeal, it means the tribunal’s order of June 2016 stands. TREB must provide VOW feeds with all of the “disputed data”, which includes “archived data, with respect to sold and pending sold homes, withdrawn, expired, suspended or terminated listings and offers of commission to brokers who represent the successful home purchaser,” according to the order.



“We are working with our members to ensure TREB is in full compliance with the order,” said TREB president Garry Bhaura in a statement. The order only covers TREB, but it’s expected that other boards across the country will review their own rules and start to supply the information as well.

The order stipulates that the board can “not preclude or restrict its members’ use of the information in the VOW Data Feed on any device (including but not restricted to computers, tablets or smartphones), but TREB may limit members’ use to being directly related to the business of providing residential real estate brokerage services.”

Many brokerages began providing online “sold” information as soon as the Supreme Court decision was announced, prompting TREB to issue a warning that “the data cannot be scraped, mined, sold, resold, licensed, reorganized or monetized in any way, including through the sale of derivative products or marketing reports. The data cannot be used for commercial purposes other than to provide residential real estate brokerage services between a Realtor and a client or customer. Breach of this by either a member or the member’s clients or customers may result in legal action (including damages) against the member and the cancellation of TREB membership and TREB MLS system access.”

TREB also says that consumers can only access data through a password-protected VOW website operated by a TREB member. While many brokerages initially offered the sold information without the need for registration, most are now complying with this requirement. But the board reportedly sent “cease and desist” orders to some site owners who were displaying sold data.

Much of TREB’s case against displaying the disputed information hinged on protecting the privacy rights of clients who did not want sold information published online.

The Real Estate Council of Ontario issued a statement that says, “RECO has received questions about what this means for compliance with advertising requirements under the Real Estate and Business Brokers Act, 2002 (REBBA)…which prohibits the advertising of the ‘sold’ price without the parties having provided written consent to do so. However, the Competition Tribunal’s decision determined that sold information provided on a password-protected VOW does not constitute advertising, since providing that same information in other formats (such as a Comparative Market Analysis), or providing other MLS information, does not constitute advertising, either.”

The long saga of TREB’s MLS data dispute began in May 2007, when broker Fraser Beach launched realestateplus.ca in partnership with BNV, a subsidiary of Bell Canada. Beach downloaded listings from TREB’s MLS system and made them available to the public. TREB shut down Beach’s access to the MLS. Beach took TREB to court, saying the board was discriminating against him because he was operating a discount brokerage. TREB argued that by providing the data to a third party, Beach had breached provisions of TREB’s Authorized User Agreement. TREB won the court case and the subsequent appeal.

Lawyer Lawrence Dale and former TREB president Stephen Moranis operated Realtysellers, a discount Toronto real estate brokerage that suspended operations in 2006. They launched legal action against TREB and CREA and filed a complaint with the Competition Bureau over TREB’s offer negotiation rules. A settlement was reached but then Dale and Moranis launched a new lawsuit against TREB and CREA, as well as members of the Board of Directors and senior staff of both organizations, claiming breach of the settlement agreement. That action is still ongoing.

Dale and Moranis also tried to partner with Bell to relaunch Beach’s site in October 2007, but TREB cut off their MLS access as well, resulting in more legal action and more complaints to the Competition Bureau.

The bureau finally filed its complaint against TREB in 2011.

Beach and Dale were both recently quoted stating that now, with the information available on all websites, they have lost any competitive advantage they once had.

Moranis, along with Ryerson University professor Murtaza Haider, now writes a weekly real estate column for the National Post. After the Supreme Court announcement, they wrote that TREB is still “imposing unproductive constraints on the use of data by limiting its use to providing ‘residential real estate brokerage services between a Realtor and client or customer’. TREB’s lack of imagination and initiative are preventing innovation and restricting consumer choices.”

TREB says it is now reviewing the VOW agreement, buyer representation and listing agreements “in light of our obligations under the order and privacy laws and will provide updates in due course. We are also considering whether changes are needed regarding how long listing photos should remain active on a broker’s VOW website after the sale of a property has been completed.”

13 COMMENTS

  1. This means all private organizations will have to make their databases public now right, insurance rates, car sales, etc. Awesome! And free!

  2. Thanks for the time line and the Official Defn of Disputed Data — “it means the tribunal’s order of June 2016 stands. TREB must provide VOW feeds with all of the “disputed data”, which includes “archived data, with respect to sold and pending sold homes, withdrawn, expired, suspended or terminated listings and offers of commission to brokers who represent the successful home purchaser,” according to the order.

    • Until, during the listing signing or offer writing, a yes or no checkbox is added asking the buyer or seller if they want the data shared. 99.9% will say no and end of the data being shared publicly via VOWs etc.

  3. The privacy rights of an individual should never be trampled on because “the majority” wants to.

    If everyone wanted access to your private medical records in the name of “competition” for medical services would that be justification to allow it? Obviously and clearly not, few if any would stand for it.

    Why is other private information, like the sale price of a person’s private home any different? As mentioned the solution is glaringly EASY and makes one wonder why TREB is obviously avoiding it? There are permission based check boxes in all listing forms already. Just add one that allows or disallows the release of sold price to a VOW (etc) after the sale completes. Give people their right to privacy if they want it and “allow innovation” at the same time for anyone who wants to participate in that exercise.

  4. I have been saying for the last ten years that the public should have to pay a small fee to access all information, this would make a huge amount of money to lessen Realtors and Broker Fees. I have also been saying that just like Sellers who have to have a Listing Contract to get on the MLS system buyers should have to have a Buyers Contract with a Realtor to access MLS Information. I have been using Buyer’s contracts for Ten years and I have only had one person who would not sign and I was glad to be rid of them.

  5. I don’t see how this is going to change anything. While I don’t think we should have to make the information available as it is incomplete and requires interpretation. Other factors could have impacted a sale price that needs to be understood and it does not include private sales or new builds. Geowarehouse is really where the public should be sourcing this more accurate and complete information. I have been publishing average prices for 20 years in my work area and all it has done is made the client more aware of “market value” which makes for a more informed client. The buyer still wants to pay as low as possible on a purchase and a seller still wants to get as much as possible. This can only be achieved with a dedicated agent with a real marketing plan and networks. The biggest negative to all this is now companies outside real estate will know how much you paid for your home when you bought it, how much you sold it for and how much you net out of the sale. Be prepared to be solicited to invest these funds on gawd knows what.

  6. The public should have to pay fees every month like the realtors do .. to access what?? Since all the information that we pay for is now open to the public!

  7. Simple, when we write a contract, make a contract have a yes or no check box that the buyer checks if they want the data displayed publicly once purchased.

    Also, on a listing, ask the seller is they want the information shared if the home doesn’t sell (expired, terminated, withdrawn).

    99.9% will so no.

  8. Why doesn’t Geowarehouse have to provide it’s sold and registry data to Realtor’s and the public for free? That information is already ‘owned’ by the public and yet we have to pay to access it. On the other hand, the sold data assembled and paid for by Realtors now has to be given away without compensation. Where is the justice in that ?

  9. So now that we have more competition, Beach and Dale, the bright people who first cried that TREB wasn’t allowing enough competition, are now crying that there’s too much competition? Well, isn’t that ironic.

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