By Tony Palermo

Day six of the Competition Tribunal hearing between the Commissioner of Competition and the Toronto Real Estate Board (TREB) continued in Ottawa Tuesday with former TREB CEO Don Richardson resuming his place on the stand to face intense cross-examination from Competition Bureau counsel John Rook.

Much of the early part of the exchange involved going through TREB’s bylaws and various standard forms used by TREB members, and discussing when some changes were made to those documents. Particular attention was paid to clauses that spoke about virtual office websites (VOWs), data feeds and listing agreements.



One point of interest occurred later in the morning when Richardson, under questioning by Rook, confirmed that TREB members accessing the Stratus system could, at the press of a button, easily email detailed property search results containing information such as list price, sold price and days on the market to a consumer.

Don Richardson
Don Richardson

Richardson added that it was a judgement call by the member to decide if the consumer should receive the search results based on whether it matched the reasons for which it was conducted, which he earlier testified was based on whether it or not it related to the trade, or potential trade, of real estate.

Rook then had Richardson confirm that there was nothing in the search parameters that imposed any limitations, and also pointed out that those results could then be printed by whoever had received them.

Richardson also confirmed that TREB has never disciplined any of its members for emailing sold and related detailed information to customers, and that the CMA process operated in a similar fashion.

“So, not to put too fine a point on it, but just so the record is clear, members can, and do, send this information by email over the Internet but are not allowed to display it on a VOW, correct?” asked Rook.

“This is correct,” replied Richardson.

Rook then outlined how the MLS Data Information Form is used to capture the relevant property information to be entered into the MLS system, and showed that the seller has the opportunity to determine to what extent they want their personal information distributed over the Internet, including whether it can be displayed over a VOW.

Later in afternoon, all three tribunal panel members asked questions of Richardson, with Chief Justice Paul Crampton wondering why the Municipal Property Assessment Corporation (MPAC) system and Teranet, Ontario’s exclusive provider of online property search and registration data, which includes information sales data and transfer transaction records across the province, don’t seem to have the same privacy concerns as TREB over the posting of this information.

“I’m just trying to get a sense of how we got here,” said Crampton. “At some point the privacy issue seems to go away for MPAC and Teranet, and as you testified, they will make some of the same information available for a price.”

Richardson responded that he was unable to answer that question on their behalf and that the panel would have to review MPAC’s and Teranet’s Terms of Use information.

Crampton then asked Richardson what was preventing him, as a consumer, from taking the property information he gets from a member Realtor who emailed him the information with a “click of a button”, and redistributing it to a relative or someone else he knows. Richardson replied that TREB had its own Terms of Use posted on the website.

“But, if I am getting this (information) from an email, I’m presumably not going to a website to read the Terms of Use, correct?”

Panel member Dr. Wiktor Askanas then added, “So you have a policy you created about terms of use and no way to police it,” to which Richardson responded that TREB was doing the best it could with the resources it has.

Askanas also asked how many complaints had been filed about the VOWs, with Richardson replying that he was aware of about “20, 30 or 40 in a fairly short amount of time.”

Justice Denis Gascon asked if most of the complaints about the VOWS came from brokers or consumers, with Richardson confirming that most came from brokers or other VOW operators.

“TREB receives very few complaints from consumers about privacy issues,” said Richardson, adding that he’d be willing to bet only about two complaints a year came from members of the public about privacy issues.

TREB counsel David Vaillancourt then called Evan Sage, vice president and sales rep with Sage Realty in Toronto. Sage discussed the innovative ways his firm is using technology to gain the most amount of exposure for their listings, including the use of unique websites and professional photography for each listing; social media tools such as Facebook to help drive traffic to the websites, including having clients use their own social media networks to advertise their property; and analytics software on the back-end of each website that captures where the web traffic is coming, such as whether it was as the result of a flyer campaign, Facebook or realtor.ca.

Sage also indicated that his firm is looking at turning the Sage website into a portal consumers can visit to view listings, not just in the Toronto area, but across the country. The purpose, he said, was to be innovative and help generate sales leads.

“The Internet has been a game changer for our industry and we’ve certainly taken a hold of that,” said Sage.

Under cross-examination by Competition Bureau lawyer Emrys Davis, Sage was shown a screen capture of a listing from his website. Particular attention was drawn to an “Ask a Question” button which, after the consumer entered their contact information, gave the option to have an agent to contact them for “complimentary buyer’s services and seller home valuations.”

“You’re not charging anyone for the complimentary service, are you?” asked Davis.

“No, we do it for lead generation,” replied Sage, also confirming that his company is hoping the lead becomes a client.

“And that home evaluation would contain information like comparable properties and prices?” asked Davis.

“Yes,” replied Sage.

Davis also spent time addressing an April 23, 2015 blog post by Sage agent Melanie Piche titled The Future of the Real Estate Industry (and Why You Should Care)

As an example, Davis drew attention to “Prediction #1: Shifting Consumer Needs Change the Role of the Agent”, which reads, in part, “As consumers continue to become more informed via online research, we’re seeing a huge shift in what Buyers and Sellers expect from their real estate agent. We’re no longer going to be Gatekeepers of Information” and “The Canadian real estate industry has a well-deserved reputation for hoarding data. Over the last few years, we’ve seen several court challenges as consumers attempt to get freer access to real estate data – specifically sold prices. While the industry claims to want to ‘protect the public’s privacy’ (and there are some good arguments for this), a lot of people (myself included) believe that the quest to keep sold prices private has just as much to do with protecting real estate agent jobs.”

Tim Syrianos, broker of record and owner of Re/Max Ultimate, who has also served as a director with TREB for the last four years, was called as a witness for TREB. He confirmed his brokerage is technology-driven, operating four different websites to attract different types of consumers. It is “80 to 85 per cent paperless” and also offers two different web applications – one which uses the TREB IDX feed and the other a VOW feed.

Syrianos said he feels that providing “more services, technology and features to Realtors is the way to go.” He said, “Some people opt to recruit other agents with the phone. I want to provide (agents) with the best tools in the marketplace. When you become an administrative arm to them, they can focus on their business,” adding that the technology also benefits the consumer.

Syrianos went through a similar cross-examination by Competition Bureau lawyer Emrys Davis, who stepped through how a consumer could get a free home evaluation report from a Re/Max Ultimate agent that would ultimately include sold information, including pending sales prices where the conditions have been met, released or waived.

“And the pending sales prices are the most recent sales and particularly relevant to me as a prospective seller, correct?” asked Davis, with Syrianos agreeing they were.

Davis continued. “And when the information is provided to me as a prospective seller, the agent is not limiting their pool of listings in any way, correct?” with Syrianos confirming that was true.

Using the example of a client losing a bidding war, a common occurrence in Toronto’s current market environment, Davis had Syrianos confirm that the final selling price could later be obtained from the consumer’s agent.

“Yes, because that information is a benchmark,” said Syrianos.

“So, it’s relevant information for me as a potential home buyer?” asked Davis, to which Syrianos confirmed it was.

Vaillancourt called Dr. Jeffrey Church as TREB’s final witness for the day. Church, an economist with specializations and interests in competition policy, authored his own report for TREB challenging Dr. Gregory Vistnes’ report, which Vistnes reviewed in part as a Competition Bureau witness at the hearing on Monday.

Church spent over an hour addressing intricate economic issues and formulas while attempting to cast doubt on the validity of Vistnes’ report and assessments.

In the end, Church’s assessment was that Vistnes had not established TREB as dominant in the relevant market. His opinion is also that TREB’s VOW policy is not anti-competitive, nor does it facilitate buyer steering.

Church closed his testimony by saying that he believes there are legitimate justifications that underlie TREB’s VOW policy and that its purpose is not anti-competitive.

Church is expected to face cross-examination when the hearing resumes Wednesday morning.

44 COMMENTS

  1. So the next time I want to hire a lawyer he has to make all his personal files available to me otherwise he is in contravention of the competition act. I have a right to see all similar cases he/she has won and lost…..otherwise I file a complaint with the competition bureau. The same for the prices at Safeway on how they charge me for food prices. ….or is is the real estate industry the only industry in the sights of the competition bureau?

  2. I agree. The governments agenda is to destroy the real estate high commission industry and break it apart into fragmented pieces and this has been going on for many years now. Wake up. If you have not recognized this you have to be blind or completely naive. This is not 1985. Systems and technologies have moved forward making the realtor sales person almost obsolete. We behave like any dying industry that technology has surpassed. We want things the way they were for old times sake. The future will see far less realtors simply because they are not needed.

    • Sparks,

      There’s a famous quote that I believe is attributed to Henry Ford: “whether you think that you can or that you can’t, you are usually right”. If you don’t think you are, personally, of any value to real estate consumer’s, you are probably right!

  3. Turn out the lights, the party is almost over for the protectionists. Its good for Don he got out before the real crap hits the fan. This is just the beginning.

    • Intouch, I’m new to this and wondering what you believe will be the next big issue(s) faceng our industry?

  4. All these banal rationalizations to protect a system designed to f*** over the consumer and maximize profit for realtors- so pathetic. Obfuscation of key indicators in an era of comprehensive data access is an antiquated notion. Get your s*** together, because the Data will be made public, maybe not this year, it may require a U.S. style meltdown to provoke legislation- you’re on the right track!

    • Tex,

      With an alias like Tex you should be an American, but then again, if you were an American how could one explain the fact that you attempted to obfuscate the truth behind the “U.S., style meltdown..” — which was directly attributed to the “subprime mortgage” fiasco! REALTOR’s don’t underwrite mortgages, Tex. Since you also seem to hold yourself out as understanding the definitions of: pathetic and obfuscate, what are REM readers supposed to make of a: bird like you?

  5. I need to be clear on this issue too!!

    It is impossible for a CUSTOMER to be given access to an MLS system’s stored resources.
    Any registrant who gave such access would be in breach of REBBA in Ontario as well as lose their right to the REALTOR trademark.

    This is not debatable yet apparently TREB legal council has not been shown by TREB why this is a simple matter of AGENCY LAW!

  6. Wow all this chatter about privacy! How many Realtors and companies use “the cloud” to store data and the personal information of their clients? Well boys and girls those that do are NOT under any circumstances protecting client confidentiality or of their data. “The Cloud” is a depository of all things data and email related to the internet – the data being held in one or more data service mega servers in the USA. So the patriot act trumps any semblance of privacy these agents and brokers think they may have provided for their clients. NOTHING trumps the Patriot Act. (Tha’s why the BC Govt opened its own server banks in Kelowna to store health care data when it could have used a US server for 1000th cost.
    So in my opinion this whole discussion and fight is moot as long as all your brokers use cloud storage including TREB.

      • PED,

        Where does your information go when you hand your credit card or debit card over to a merchant who is holding a wireless debit machine, and what is the bit encryption level on the the unit the merchant is using; is the encryption level the same on every such machine; can you tell if there is an illicit card reader on the machine that your bank card is being processed through? Have you ever had to replace a debit card because it was compromised — I have. If we don’t know for sure what the bit encryption level is on every such machine that is placed in front of us, should we really expect that our banking information should be kept private?

      • PED – you wrote: “Very good point. Fact is ***no one can even name*** where their cloud server physically resides.”

        ??? Because they actually don’t know, or because they are not allowed/permitted – to disclose??? (where their cloud server *physically* resides)

        The semantics of the English language at play … but maybe worth clarifying, PED, either way.

        A real point, seriously. To wit: I plug in my smartphone to recharge and the system is set to automatically load to the Cloud in the APPLE system.

        I can designate what goes to the Cloud: photos, calendars, contacts, documents, and others, or not. And that’s just from the iPhone. Can hook up to iPad and or Laptop to infiltrate and interrelate, integrate.

        The cohesiveness and comprehensiveness is frightening perhaps, if one actually tries to digest.

        Can we spell “vortex?” (maelstrom, black hole, whirling mass).

        Carolyne L 🍁

        • Carolyne because no one knows and if no one knows our clients and customers cannot be guaranteed that their information is kept private. Someone else mentioned the servers are in the U.S., maybe, I don’t know but as long as the servers are not under our control, we control nothing.

          What bothers me about this case is that the cheerleaders for the release of the information are the businesses who want it solely for the purpose of financial gain and the nosey consumers who want it because knowing about every sale everywhere when you’re not even shopping for property has become our national pastime. They never stop long enough to think of themselves in the sellers position – to wit – there is not one proponent here who has provided their real identity, so the sellers are being given no respect for privacy and no voice.

          Not even by the judge who asked the ridiculous question as to why MPAC and Teranet do not consider it private. The answer probably should have been: but they do since they, along with the Privacy Commissioner vigorously and successfully defended that right years ago; that MPAC allows only homeowners, not every Tom, Dick or nosey Nellie, to access information on only 100 other properties and only within their municipality and that neither Teranet nor MPAC have made that information freely available on the internet.

          In any case, I believe this outcome was a foregone conclusion when a higher court judge more or less looked down upon this lower court’s judiciary and told them they erred in judgement.

          In any case, for every action there is an equal and opposite reaction, should TREB lose this case, we’ll find out what that reaction is.

    • Bob a registrant taking the actions you describe is in breach of PIPEDIA. PIPEDIA covers this clearly and extensive research has gone into compliance. While I cannot say registrants follow these requirements, they are the law and must be assumed to be followed by any member of TREB.

    • Bob,

      So essentially your argument is: that if it is possible to hack into the Pentagon, there is no reason not to embrace the VOW (Virtual Organization Website) concept! If the Competition Bureau’s lawyers start pushing this logic TREB might as well fold up its tents!

  7. It’s clear Alan is bias as his comments wouldn’t stand up even in a kangaroo court. Why? Not because of what Ross suggests, but because TREB has no real defence. The information we collect is PUBLIC information and has everything to do with public interests, just as gas line and telecom Infrastructure do. There are no privacy issues here period, and no one can tell me one thing that we collect where privacy would be an issue. Protecting sold information is protecting Realtors jobs, but if you you understand what our role really should be, then we shouldn’t fear making that information public.

    • HWR,

      Besides yourself, who specifically has decreed that the price that someone sell’s their home for is deemed public information, and furthermore can be publicly distributed without limitations — tell us? If what someone sells their home for is accepted in law as pubic information (in the way that you suggest), why do our industry listing agreements or contracts seek the approval of the seller’s for our industry to use said data but for only specified purposes — do you suppose it is because our various industry legal counsel(s) has instructed our Boards and or Associations to seek such seller approval, unnecessarily ?

      HWR, are you suggesting that property seller’s are not entitled to decide where their property listing can be specifically exposed on the internet, once they’ve signed a listing contract with a particular brokerage — because it sounds as though you are? Have you ever told one of your seller’s that you don’t really need the permissions contained in the listing agreement to use the data related to the sale of their property, or that you can also promote their property anywhere that you see fit — regardless of what may be stated in the listing agreement?

      HWR, have you been entirely forthright with your seller’s regarding this topic?

      • Industry members publish sellers asking price and pictures of the exterior home before and after the sale. We publish their square footage and lots size, and we publish any significant upgrades. We even publish aerial views of the home…sellers seem to have no trouble doing that. And Realtors send the same information out to strangers, INCLUDING SALE PRICE, who are looking for information in hopes of developing a relationship with these strangers on a regular basis. So tell me what makes the sale price any different…especially when it’s public information anyway? Is our industries standard now a double standard? Is your only standard a double standard?

      • Alan, I wondered about your question as well but a simple quick google search indicates that provincial legislation supports the fact that sale prices are public information and not private.

        • Older reps might recall that in the 80s, a sale price COULD be kept private, for example, by requesting the closing lawyer to register the said sale in Toronto instead of in Peel, at that time.

          And many LRO registrations showed as $1 or $2, at Peel, especially if it had been a spousal buyout of a matrimonial home, for privacy reasons.

          And requests could be made to TREB – marked “sale price withheld.” So, seller privacy rights could THEN be protected. Sometimes the request was made by a buyer, on occasion. Even in a corporate buyout relocation – coming in or going out; when the property value was a corporate “perk.”

          With the advent of computer-speak, I don’t actually know how that is handled today, to protect family or corporate privacy.

          Can anyone speak to that topic?

          Carolyne L 🍁

        • Hampton,

          The question is more about the precise nature of the access to the information — is it limited, is it unlimited, is there a fee involved. A sale price, on its own, without context has little value.

        • That is only partially correct. It becomes public information once it is registered with land titles. Yet, land titles offices do not have for public consumption, a searchable database on line. The general public must attend at a registry office to get that information, and that for all intents and purposes keeps the nosies at bay; the ex who wants to know much you made on the sale or paid for the current house you’re currently living in with your new partner; how much your employer paid for their house and how much your relative’s inheritance was worth because you weren’t in the will.

          To Carolyne’s point below, it can still be registered without a sale price or transferred without showing a sale price of more than $2. Some people do exactly that and do it for a reason HamptonP – to keep their private information from the public records.

          • Ped, i understand what you are saying about attending Land Registry offices but you do agree that once registered the sale price is public information – is this correct?

        • Hampton,

          PED has done a fine job of answering your question; she should invoice you.

          Sometimes we make discussions gratuitously complicated when all we need to do is look at the basic definition of the word at the center, which in this case is: Privacy, — essentially defined as: “: the state of being away from public attention”. PED also covered this in her response.

      • Look to RECO for consumer complaints where their buying information has been made public. If consumers want sold prices they can get them where the information is held in a public arena. The registry office. The MLS data base belongs to those who pay for it. We pay licensing fees and are regulated for a reason. Things are changing but the government canno call on us to be licensed and regulated and turn a blind cheek to those who operate unlicensed. I think RECO should have been called to the stand or I think all of us should be able to foregolcensimg, errors and omissions etc…

        • Filicka,

          Very good points. Regulators do seem to be turning a blind eye or cheek to those who operate unlicensed, but there is a special reason for that.

          In my opinion, the largest contributing factor to this problem is related to the existence of “mere postings”. When a FSBO company also becomes involved, simultaneously, with a “mere posting” seller, the FSBO company is able to leverage off of organized real estate, to the point where they should be seen as not just providing a FSBO service anymore. The FSBO Company gains prominence through association with our industry brands and trademarks. I have evidence where a FSBO company has also acted as a de-facto agent for the listing Brokerage, by providing the licensed Brokerage with specific details of said Brokerages “mere posting” listing.

          FSBO Companies have been allowed to do what they do, on the basis of just providing formatted marketing material etc., and some form of internet exposure to the private seller; they can not counsel a seller or participate in any negotiations — sounds very similar to a “mere posting”, but then again a “mere posting” isn’t as likely to include the marketing materials! A real estate Brokerage must be licensed to offer “mere postings” but a FSBO Company, apparently, doesn’t need to be licensed to be associated with a “mere posting” seller! When a FSBO Company participates simultaneously with a Brokerages “mere posting” listing they become connected by virtue of the mutual interest. I believe that this very public connection should require that the FSBO Company must be also licensed.

    • HWR,

      You wouldn’t even participate in REM discussions, if you couldn’t maintain the privacy around both your given name and your surname. Yet, you maintain that all seller’s and the buyer’s of those seller’s homes have no entitlement whatsoever to any privacy as it relates to sale price information etc.. HWR, have you not got to the words in the dictionary that start with the letter H yet? Do yourself a favour and jump ahead to this word: hypocrite.

      • A response like that clearly highlights your inability to understand the case. To relate my name on this blog (not of public interest) to sold prices (of public interest) speaks volumes and I don’t have to touch on that further. By the way…who is Alan M beyond Alan M?

  8. I say get rid of Realtor.ca, and the board linkages to MPAC and Teranet. We have over 100,000 agents working their asses off collecting this data on millions of listings for no remuneration and handing it over to outside interests for free. In spite of all this free labour we are constantly bombarded with legal proceedings and questions on our motives and integrity. We work in a system that hoodwinks us into giving up the product of our labour for nothing, it’s absurd. Keep it at the Board level for our exclusive use. Realtor.ca competes directly with my own website, I don’t need it. Get back to meeting clients professionally in our offices or homes and take control of the product of our work, data!

    • Has nothing to do with Realtor.ca. It’s about the data or PUBLIC information we collect and how we use and distribute it. So shutting Realtor.ca would matter none. In fact Realtor.ca should be the first to introduce sold data and places where consumers can access the very best and relevant information. If you close Realtor.ca Chris you will become a very small small spec on a very big ocean.

      Let’s open our eyes, if we don’t change we will be forced to change. If we don’t lead we will follow. Make Realtor.ca the go to website and the most trusted website for Canadian home buyers and sellers.

  9. Not looking good for TREB. The CB continues to slam TREB on privacy as a defense. Why? Because it’s easy to do so. I challenged readers here to tell me one thing that we collect or publish that has anything real or substantial in regards to privacy. Why don’t we just accept that we will be forced to open up the System just like we were forced to offer mere postings, and start getting back to doing what we do best…sell homes.

    • CREA decided to allow mere postings on it’s own. There was no forcing involved or court decision mandating such. CREA chose to reduce the obligations attached to using the REALTOR trademark, a decision they made for CREA’s own corporate financial benefit to ensure as many registrants as possible could use it’s trademark and then pay CREA licensing fees.

      • Bull. Without pressure from the CB the mere posting would not exist. At least try and be a bit honest with yourself and the readers Ross. And maybe you and Alan can actually answer some of the questions I posed to you. Like Chameleon’s you guys are hard to pin down and always changing colours.

        • Trademark lawyers had already stated that the terms the REALTOR trademark were licensed under could not be changed by government interaction. It had never happened in the history of Canada and no court in the land would have let it happen.

          CREA made a corporate decision to lower the standards of what a REALTOR was. A REALTOR today means FSBO. There was no legal reason that ever needed to happen.

          • Ross,

            In 2010, (with the October vote fast approaching) at a meeting with the then CREA President, I stood in my place and I asked him what he knew about any legal opinion that CREA had received or was seeking in relation to acquiring an opinion from Lawyers who specialize in Trademark law, as it would pertain to CREA’s entitlement to reject any notion of “mere postings” as being an infringement on CREA’s legal rights to protect the REALTOR trademark. His initial response was a blank look on his face, which he would follow-up with by stating verbally that he was unaware of any thought being given to Trademark law and legal entitlements to protect REALTOR pursuant to trademark law. I had no doubts whatsoever as to his sincerity.

            Ross, if you are correct in your assertion and if CREA was directly aware of this: “Trademark lawyers had already stated that the terms the REALTOR trademark were licensed under could not be changed by government interaction.” it would mean that the CREA Bureaucrats (employees) can operate or function fully independent of the CREA Board of Directors — even as it relates to the most important topics or challenges that face the organized real estate industry.

            Should it the case that the Delegates who voted in St John’s in October of 2010, regarding the Consent Agreement, were not made aware of this subject material point regarding Trademark Law and REALTOR, it would be more than sufficient to invalidate the vote that took place in St.John’s Nfld., regarding whether or not to accept the Competition Consent Agreement!

    • HWR, (habitually wrong reasoning)

      How can you expect anyone to be able to communicate with you, when you don’t seem to understand the definitions of some common words, like: “forced” verses: capitulate?

  10. And another point….have your rules and regs been changed behind your backs or are they still in effect? I ask because ONE brokerage member of TREB with thousands of listings posted to the TREB MLS system, signage is in 100% breach of rules that have been in place for decades. This is not a REBBA requirement but a long standing requirement of TREB membership and a requirement that is unique to TREB.

    Why is only one brokerage allowed to do this while others are not?

  11. A good legal defense requires legal council to be informed and educated on as much relevant information as possible. It is clear TREB has failed in it’s due diligence on providing this needed insight to it’s legal team. I am sure TREB and CB both had the other’s witness list well ahead of these proceedings or at least the ability to call a short recess to review any witnesses websites and internet vettable business practices.

    Why would TREB allow brokerages and registrant members who are in blatant and arrogant breach of REBBA to not face a simple credibility challenge. Why did TREB or it’s Board of Directors not immediately issue a formal complaint to RECO the moment the witness list was provided and a quick 10 min vetting completed? Is the the protection of the corporation not the most basic legal requirement of it’s CEO and Board of Directors?? I guess with ORE they can get away with it?

    Why are the current Board of Directors of TREB allowing this ongoing incompetence to go unchallenged and why is the current CEO not seeking credible information to supply the Board??

    These judges are seeking information to make an informed decision but the most simplest of information is not being supplied to them and for that I do not know why?

  12. Hopefully at some point the Tribunal will address who can afford to operate an elitist concept such as a full-blown VOW (Virtual Organization Website) and who can’t, but I’m not counting on it.

    Ideally, I would have preferred to have a journalist who was on REM’s staff report on such an important event, because it would be helpful to have someone on this who is uniquely tied to our industry. I take exception to the headline for this article because it implies something that should be left to the reader, regarding who was feeling the most pressure: the witness or the interviewer!

    Based on what is contained in this article a reader would conclude that the Tribunal is advocating for the Competition Bureau, at this point.

    So, let’s consider to the extent that Don Richardson may have been in a “hot-seat”, with the following from the Competition Bureau’s lead counsel: ““So, not to put too fine a point on it, but just so the record is clear, members can, and do, send this information by email over the Internet but are not allowed to display it on a VOW, correct?” asked Rook.” Any Registrant or first year Practitioner could’ve aced this gem of a question, but what was the point of it? The issue at hand is about whether or not it is acceptable for consumer’s to have an open and virtually unrestricted access to organized real estate’s sales data, as opposed to the controls that are currently in place. What Mr. Rook suggesting that the subject is as simple as an “all or nothing” mentality? I think the only reason that one might not consider Mr. Rook as not being in the “hot seat” is because he wasn’t sitting down when he asked his questions!

    Consider the following statement attributed to the Chief Justice, posed to Don Richardson: ““I’m just trying to get a sense of how we got here,” said Crampton. “At some point the privacy issue seems to go away for MPAC and Teranet, and as you testified, they will make some of the same information available for a price.” The fact that one organization may handle its Privacy policies different than another doesn’t create a precedent that is automatically validated, anyway. Why didn’t the Chief Justice ask his privacy question in the context of what would be acceptable or required within the pages of: Canada’s Privacy Act?

    Consider the following question also posed to Don Richardson: “Panel member Dr. Wiktor Askanas then added, “So you have a policy you created about terms of use and no way to police it,” to which Richardson responded that TREB was doing the best it could with the resources it has.” We police the sharing of our data through a Registrant or Practitioner using their discretion, on a one by one basis, in terms of who they will share the data with, precisely how much they will share and when. The aforesaid form of policing simply isn’t possible when consumer’s have unrestricted and direct access to data. Was this panel member actually equating, through implication, that what we have in place now is tantamount to providing direct access, anyway? If so, this would be to argue that two-wrongs can perhaps make one-right!

    One of the basic inequities in the law is that in situations like this one at the Tribunal, you invariably have an Amateur witness coming up against a Professional (lawyer) interrogator. Consider the following exchange: “Davis [Emrys Davis] continued. “And when the information is provided to me as a prospective seller, the agent is not limiting their pool of listings in any way, correct?” with Syrianos confirming that was true.” Ms. Davis should’ve known better than to ask the question in such a leading manner. If this article has been reported in the correct sequence of events, Don Richardson had already answered the subject question correctly, with:”Richardson added that it was a judgement call by the member to decide if the consumer should receive the search results based on whether it matched the reasons for which it was conducted, which he earlier testified was based on whether it or not it related to the trade, or potential trade, of real estate.” Although this was a different witness, it was a redundant question. Did TREB’s lawyer’s object to the way Ms. Davis framed this subject question?

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