A Federal Court of Appeal judge says that TREB “has raised at least one serious issue with respect to the possibility that the tribunal’s order failed to take adequate consideration of property owners’ privacy rights.”
Justice Mary J.L. Gleason issued a stay of the order of the Competition Tribunal, pending the disposition of TREB’s appeal of the order, on Aug. 12.
“When analysing the privacy issue, the tribunal focused largely on whether TREB’s motivation for raising property owners’ privacy rights stemmed from a legitimate concern about those rights or was tainted by an improper desire to maintain the dominant position of the majority of its members who do not rely on web-based services,” says Gleason in Reasons for Order. “TREB argues that in focusing its inquiry on this issue, the tribunal erred.”
Gleason says that the tribunal “did not canvass whether the order might impact the interests of those who sold or purchased properties some time ago and did not sign consents to having their information disclosed on the Internet. Secondly, any consents signed more recently would have been signed at a time when TREB members did not post the additional information on the Internet, in contrast to what would be enabled by the tribunal’s order. Therefore, the existing consents might not be broad enough to cover the posting of additional information that is allowed under the tribunal’s order. Neither point was considered by the tribunal.”
In addition to needing to show there is a “serious” issue with the order, TREB also had to show that it would suffer irreparable harm if the order stands.
“I am satisfied that TREB would suffer irreparable harm if the requested stay is not granted because…there is a real possibility that it will lose control over the data the order requires it to permit its members to post on their websites…,” says Gleason. “In short, TREB has established that once the information is available on the Internet, it probably can be copied and there is simply no way that all copies would be retrieved if TREB were successful in its appeal.”
To expedite proceedings, both sides in the dispute, as well as CREA, which was granted intervener status in the appeal, were given 15 days to file a proposed timetable for the pre-hearing steps.
The tribunal ordered TREB to pay the Commissioner of Competition about $1.8 million, but Gleason also stayed that part of the order. “Given the quantum of the costs award, the nature of the issues engaged in this appeal and TREB’s not-for-profit nature, I believe it appropriate that the stay extend to all parts of the tribunal’s order,” she wrote.