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.

4 COMMENTS

  1. So, originally the Tribunal found in favour of TREB, then a Court sent it back to the Tribunal .. which then found in favour of the Competition Bureau .. and then TREB appealed and in the meantime this Federal Court Judge has stayed the proceedings until TREB’s appeal is heard. So basically the Tribunal flip-flopped when being instructed how to decide a case by the Court … so I ask, what is the purpose of a Tribunal??? … why not straight to court?

    • Mike,

      It is important to keep in mind that the Competition Tribunal consists of three panel members, and that the panel members that rendered the original decision (where TREB prevailed) did not participate in the second hearing — known as the: redetermination hearing. The original panel members had to step aside for the second hearing. When the Tribunal works as best it should — as it did with the original decision, there are benefits that can exist by having a quasi-judicial format. For one thing the panel can include someone who is not an attorney and the process can be somewhat less formal, early on, than a Court might be.

      There can be no doubt that this matter has become a political “hot potato” and it would be interesting to know if and to what extent there are any precedents for a Tribunal matter being sent back by the Appeals Court for a: redetermination hearing. It would also be interesting to know how the second Tribunal panel was chosen to hear the matter. Presumably, the second Tribunal panel could not be seen to agree with the first Tribunal panel, otherwise they might have been perceived as biased against the redetermination hearing. Is it possible that there were other potential Tribunal panel members who were excluded or disqualified from the “redetermination hearing” because they agreed with the original Tribunal panel members? There are a lot of great questions that are not being asked, and once again this is because this matter is only being covered superficially by the larger Canadian media.

      When the matter was sent back to the Tribunal the Judge ordered that the matter should be heard on its merits. Such a ruling implies that the original Tribunal members did not evaluate the matter based “on its merits” , but how else could they have decided the matter? While the Judiciary needs some flexibility, I would think that such a ruling would have a better place where an organization was clearly and blatantly flaunting the Law. For example, if TREB had been stipulating as to minimum levels of commission that must be charged by all the brokerages. I don’t believe that the subject of the “disputed data” is a competition issue — it was and is a political issue and the waters become murky, things just don’t make sense, when bad politics wade in!

      The Honorable Judges decision that is the subject of this herein article is like crystal clear water, and like the Tribunals original decision we can trust that politics stayed out of it!

  2. Isn’t it amazing how fast a Federal Court of Appeals Judge can get to the bottom of this matter, by ruling primarily on the truth of it! The Judges ruling is straightforward and to the points, as mentioned, but it has also told us more about what has gone on — in terms of what the Tribunal did not do.

    The following paragraph is from the Tribunals recent public decision regarding this matter and TREB:

    “[776] More specifically, CREA states that consumers are concerned about their property information being disclosed on a public website and adds that realtors who placed such information on the MLS system and who provide services using that system may negatively affect the credibility of CREA’s trade-marks. However, as discussed at paragraphs 382-387 of these reasons, the evidence that consumers may be concerned about the display of the Disputed Data on VOWs was very limited and not persuasive. In any event, the Tribunal has not been persuaded that existing consents in the standard Listing Agreement that TREB recommends its Members to execute with their clients do not extend to the display of historical information such as the sold price of their home and WEST listings information, after their homes have been sold.”

    What is particularly dumbfounding about the above paragraph, is the Competition Tribunals use of the word: “persuaded”, in the context used. Webster’s Dictionary defines the word PERSUADED as per the following: “to cause (someone) to do something by asking, arguing, or giving reasons”. As the question of written “seller consents” is a major point, it is not only reasonable to believe that with all the Attorneys and high priced experts, at the trough, that the Tribunal had “not been persuaded” based on their proper review of current and preexisting written “seller consents” (that would have formed part of the pertinent Listing Agreements), but even moreso that: by using the word “persuaded” the Competition Tribunal wrongly gave the impression that they had exercised proper due diligence regarding this question — when in fact, they had not exercised any! What other conclusion can be drawn based on the Honorable Judges following quoted statement, made definitive by the last sentence:

    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.”

    I don’t know how big this story has got to get before the larger Canadian media finally sit up and take proper notice, but it’s long past time for the Competition Bureau to fold up its tents, and the best way to sell newspapers is through high political intrigue!

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