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VOW feeds with all of the “disputed data”, which includes “archived data, with respect to sold and pending sold homes, withdrawn, expired, suspended or terminated listings and offers of commission to brokers who represent the successful home purchaser,” according to the order.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.”