By Tony Palermo

While the Competition Tribunal has partially granted the Commissioner of Competition’s application against the Toronto Real Estate Board (TREB), it remains to be seen what the specific terms of the ruling will be. The tribunal asked both parties to submit suggested remedies and will make its final decision after both sides have had the opportunity to make oral submissions on the issue.

What we do know is the tribunal found that TREB has engaged in anti-competitive behaviour that had “a considerable adverse impact on innovation, quality and the range of residential real estate brokerage services that likely would be offered in the GTA, in the absence of the virtual office website (VOW) restrictions.”

Ken McLachlan, broker of record and owner of Re/Max Hallmark Realty, says, “I’m okay with the tribunal’s decision. “I think this (represents) the lay of the land moving forward.”



McLachlan isn’t worried about any negative impact to his business moving forward because of the tribunal’s ruling. He says while TREB might be selling information, Realtors don’t sell information. Realtors, he says, interpret and deal with information, and that’s the foundation of their value.

“The information in itself isn’t the important part,” says McLachlan. “It’s how (a Realtor) deals with the information that matters.”

Bill McMullin, CEO of ViewPoint Realty Services, Nova Scotia’s largest real estate database, agrees that the MLS data alone isn’t what most consumers want.

“Properly informed decisions on the purchase or sale of real estate takes into account a lot more than MLS data,” he says. “If it was just about sold data we wouldn’t be where we are today in terms of growth.”

When he testified as a Competition Bureau witness during the trial, McMullin attributed part of ViewPoint’s successful growth in Nova Scotia to making all relevant information available to the public. He says the stubborn position taken by TREB and real estate boards outside of Nova Scotia on providing their own members with efficient access to the MLS has been the primary impediment to the expansion of his brokerage outside of Nova Scotia.

Still, McMullin believes the market effects of the decision won’t be immediate. As he says, the Canadian real estate industry is highly fragmented, including the MLS data.

“The MLS data is under the control of over 60 real estate boards, then there’s the property data, which is controlled by the provincial governments,” says McMullin. “Even when TREB and the other boards enable their brokerage members to efficiently access their MLS, a number of significant challenges remain if a company wants to create a national real estate portal like Zillow has for the United States or ViewPoint for Nova Scotia. It takes a lot more than MLS data to create a market-leading consumer real estate portal.”

Reflecting on the decision, McMullin says it’s important to remember that this case wasn’t about public access to the MLS system as many were inclined to believe; rather, it was about members’ access to the MLS data.

“Yes, members serve the public and would like to make certain information available to the public on their websites, but the Competition Bureau was advocating for members access to the MLS data so that the members could serve the consumer better,” he says.

When asked why he thought it all came down to this, McMullin is quick to answer: “Computers don’t pay fees.”

McMullin believes some people in organized real estate have an irrational fear that the expansion of self-service, and self-directed learning and research on the web, could erode the Realtor value proposition and result in fewer Realtors.

It’s a notion he says is nonsense. “When I look at Nova Scotia, I see no evidence of that.”

Citing that the matter is still before the courts, the Competition Bureau declined to comment on any specific remedies it is considering.

TREB also had no comment beyond its already released official statement indicating that its legal counsel has received the tribunal’s decision, that no order has been issued, and that the tribunal has asked both parties to provide input regarding remedies.

CREA spokesperson Pierre Leduc says CREA continues to review the lengthy and complex decision and that they will not be in a position to fully assess the ramifications of the decision until the tribunal decides the issue of remedy and produces its order.

The hearing on the issue of remedy will take place on June 2 in Ottawa.

10 COMMENTS

  1. Has anyone seen NAR’s recent ad for realtor.com in the US? The key benefit they’re touting is the ability to find out what your neighbour paid for their home! What a difference a border makes.

  2. Wes, What exactly can a sales person really do? In Ontario they cannot even price a home, “In fact, RECO’s rules prohibit a real estate broker or salesperson from giving an opinion or advice about valuation unless they have relevant education or experience as a qualified appraiser.” Ask Joe and published here http://goo.gl/nlREXH .

    In BC they fail to complete FINTRAC forms, until last week could do an assignments in secrecy, allow their board economist to mislead the public ( so the agent only needs to refer to his words), pretend home prices will rise forever, etc etc. Sure the RECBC was not limited because it was a self-regulatory body and all the crap allowed to go on was innocent.

    Actually maybe the FVREB members really do believe April’s 49.5% surge in sales over 2016 was caused by fairy dust and trickle down home pricing. Sure your benchmark home is not impacted by renovations going on across the homes sold in FVREB and it really is a benchmark not simply a reproduction of ASP.

  3. The comments expressed in the article are correct in MHO. Data is just that, information. The Realtor value is how that information is applied. If showing up to open a house for a buyers agent or telling people how many bathrooms are in a house were our key value points a Realtors (R) then we are mistaken.

  4. Tony Palermo, Why are you not contacting the Real Estate Council of Ontario and getting their take on this?
    Why are you not contacting a couple of Ontario Real Estate Lawyers familiar with decades of court rulings and an understanding of why SOLD data cannot be given public access?
    Why have you not reproduced the written instructions provided to members of organized real estate from provincial regulators on what they can and cannot do?
    Why have you not emailed the Privacy Commissioner in Ontario and Canada and asked them about their opinions?

    Myths and Misrepresentations Con Canadian homeowners and they Con Canadian REALTORS. It is time the truth and facts become the dominating news.

    The Average Canadian home on a Level 2 National Appraisal sold for $377,962 not the $508,000 plus released nationally. If you are an ethical REALTOR step back and stand up!!!

    • Sold data is publicly available. In British Columbia, for example, sold data is available on the BC Assessment web site as well as from the Land Title Office. Sold data is also automatically provided to every single member of the real estate board when the sale goes firm — at least if the sale went through the MLS system. If a client, or potential client, calls up a real estate agent and asks for information on a sold property 99.99% of agents will provide the sale price. (OK, I made that stat up. But I’ve never heard of an agent who has refused to provide such information to the general public.)

      • Really….99.99% of the members in your association willingly and knowingly break mls rules, privacy legislation and they refuse to meet RECBC standards.

        I guess that mirrors exactly the news that has appeared for months in BC newspapers.

  5. “partially granted” — yeah, I suppose the Tribunal granted the Commissioner only 99% of what he was asking for. After reading page after page in the reasons for judgment eviscerating TREB I’m hard pressed to recall what exactly went in TREB’s favour.

  6. “Reflecting on the decision, McMullin says it’s important to remember that this case wasn’t about public access to the MLS system as many were inclined to believe; rather, it was about members’ access to the MLS data.” — absolutely right, Bill. The case is all about Boards in Canada (except NS) denying easy access to MLS system data to their members as well as severely restricting how REALTORS may make use of that data. The Boards are essentially preventing REALTORS from creating more innovative business models.

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