By Matthew Boswell

Legal counsel for the Toronto Real Estate Board recently wrote that the Supreme Court of Canada’s decision to not hear TREB’s appeal “leaves open many legal questions”, particularly regarding consumer privacy.

I would like to set the record straight.

The truth is that the Supreme Court’s decision has brought this case firmly to a close. After a costly seven-year legal battle, the privacy arguments TREB raised to defend its anticompetitive data restrictions have been dealt with exhaustively by the courts.



In 2016, the Competition Tribunal ruled that TREB’s privacy arguments were a “pretext” and an “afterthought” used to justify its anticompetitive restrictions. The tribunal also found that TREB already had sufficient consent from home buyers and sellers to display the relevant data, including historical listings and sale prices, through virtual office websites.

After all, Realtors in the GTA freely share the same information with their clients in a variety of other ways many times each day.

TREB then took the case to the Federal Court of Appeal, raising the same privacy arguments that were shot down by the tribunal.

In 2017, the court cited “compelling” evidence that TREB’s intent was to limit competition, not to protect privacy. Like the tribunal, the court analyzed the historical consents that TREB had secured from previous buyers and sellers. And like the tribunal, the court rejected TREB’s argument that it did not have sufficient consent from clients to share sales data through websites.

The Supreme Court’s decision to not hear TREB’s second appeal does not mean that there are unanswered questions. Instead, it means that the decisions of both the Competition Tribunal and the Federal Court of Appeal are final. TREB’s privacy arguments related to the case have had their day in court, and the courts have spoken.

With TREB’s restrictions struck down, Realtors in the GTA are now free to offer home buyers and sellers insights into sales prices – such as innovative tools that provide information on local trends – with the added convenience of online access.

Since the Supreme Court’s decision, the Competition Bureau has had many encouraging conversations with other real estate boards across Canada. We are hearing that many of their members, like many members of TREB, welcome this decision and are keen to embrace the opportunities the internet offers to better serve their clients.

We all want the same thing: for Canadians to have access to the best and most innovative real estate services possible.

For TREB, and for real estate boards across Canada, the message from the courts is loud and clear: this matter is settled. It’s time to move forward, embrace policies that align with the law and open the door to innovation in real estate services.

Matthew Boswell was appointed interim commissioner of competition for up to one year beginning May 31, 2018. He joined the Competition Bureau in 2011 and became a senior deputy commissioner in 2012. He has led numerous merger reviews and directed major investigations targeting criminal cartels, abuse of dominance and deceptive marketing practices. Prior to joining the bureau, he prosecuted securities fraud as a senior litigation counsel at the Ontario Securities Commission and prosecuted all types of criminal offences as an assistant Crown attorney in Toronto.

14 COMMENTS

  1. Although i dont care if the sales data and other information is give away(although i consider it private). I do mind that my time and effort needs to be re paid every time some uses the data that i collected and inputted into a database. Where is my royalties….I paid for that database and am still paying for it. What about all the kijiji and craigslist sales that are private. Where is that data and how do i access it!!!! Nobody bothers to consider the value that organized real estate boards contribute overall and managing the market. This whole new internet model is flawed. Realtors establish market value based upon many factors. Tell me honestly, do you want some day time home dweller to be the market maker…..What about A.I.,,, A,I is very heavy handed in the stock market for the last year and look how that is turning out. No rhyme or reason for things happening. The worlds equities and derivative markets rely on the market markers and their variables associated with wide ranging products, why do we think its any different for Real Estate.

  2. The Registrar in Ontario has been very clear. Unless the information is behind a password protected siteand a relationship with the person accessing the data or you have clear written authorization from both buyer and seller you can NOT release the sold data. In this case the Registrars position trumps the Competition Bureaus as the Registrar does not answer to the Competition Bureau

  3. Aside from privacy rights (and as a seller, I did not agree to have my information made open to the public). It costs money to maintain data. The information is given away for free, but it is not free to Realtors who pay for the data. Why should Realtors continue paying to compile and maintain data while others get it for free. Perhaps someone else should take over and add new builder and for sale by owner info. There will be a charge for that information, most likely. It seems Realtors are being financially abused, really, when they paid so much over the years and are still paying for something being taken without payment. What is the cost overall, for each city, province, to maintain data? What is the cost for wages and benefits Realtors don’t have, for instance?

    • Huh? Yes, we Realtors do pay to compile and maintain the data, but we get all the benefits as well. One of the important benefits is to be able to allow our clients to get access to the data via a password-protected website. You can charge for such access if you want, though it’s not a requirement and perhaps not a very competitive thing to do. No one is “taking” anything. Each Realtor can choose to provide such access or not, depending on the level of service they wish to provide to their clients.

  4. Relevant to the story or not; MLS® is Multiple Listing SYSTEM® NOT Multiple Listing Service. The MLS® is a system designed and paid for by REALTORS® to enhance the collaboration and networking efforts of REALTORS® as they share their buyers and sellers wants and needs with co-operating members toward achieving those client goals. The whole thing is off the rails because we allow it to be considered a ‘service’. We individual REALTORS® are the ‘service’ not the system we use in our day to day operations. That system is nothing more and nothing less than an effective ‘networking system’, a tool of the trade so to speak. Try call up your local tradesperson and ask to borrow their tools to fix your broken this or that. They’ll tell you to go buy your own damn tools.

  5. Meanwhile in a Nova Scotia, we’ve had a very good VOW known as Viewpoint.ca for years. Quite frankly, their site is vastly superior to REALTOR.ca and from my experience, a majority of buyers in this province use Viewpoint for their home searches. I have heard of no adverse consequences as result of this VOW’s existence. If CREA, with vastly more resources than Viewpoint, can’t create a better web site, then there is a larger problem than the inevitable existence VOWs across Canada. I urge all REALTORS to contact CREA and their local associations to demand a complete over hall of REALTOR.ca to make it at least as good as Viewpoint.ca If CREA can’t drag itself into the 21st century, whoever comes up with the best VOW with national coverage will be the winner.

  6. As the person who invented the VOW, It was never meant for the public to have access to any data. CREA made the mistake years ago by putting our listings on a public domain that set the precedent for SOLD data to be released. VOW’s were built for “Realtor to Client” relationships and not for the public. Since we give sold data to our clients via email and print media, we cannot argue that this information is copyrighted or exclusive to only us as Realtors. This information (sold data) is more vital to us and our clients to determine value on both listing a home and buying a home, than listing data. Using a VOW was actually more secure a medium to give this information to clients because we were able to track everything that was sent out and received. Previously Realtors were giving this information to moving companies, mortgage lenders and others – and we had no way of tracking it – and still don’t regardless of the technology. If TREB had embraced a technology that would have protected our data so that only client’s of Realtors would have access to both sold and listing data then our industry would have been stronger and we as Realtors would have been seen by the public as more professional. It would have stopped the data mining companies from preying on us to give them referrals for leads that they had no right in acquiring. Unfortunately, our industry has been run by people who had no training in technology or security. When we entered into the “WEB” we had no idea what the future would hold but most of us didn’t care – we just wanted to see our names and faces plastered all over the web. That seemed to be the most important issue at the time. And now we have lost control of just about everything we valued.

    The More you Give – the Less you’re Valued!

  7. Mr. Boswell,

    Since the case in question lacked the expert witnesses required to facilitate a thoughtful and fact based determination of the courts, consumers have been left in a lurch now relying upon their solicitors involvement in any transaction prior to entering any contractual service agreement with a REALTOR.

    There is not an informed solicitor in Canada who would ever authorize the public disclosure of the purchase price paid or selling price accepted for any personal residence in Canada. It was tragic that the Real Estate Council of Ontario or the Financial Services Commission of Ontario, were not called to provide expert witness on the simplicity of Mortgage Fraud and Identity Theft that result from this opening of private information with nothing more than a fake email address. I assume the Bureau was not assuming 80,000 REALTORS in Ontario have even the slightest ability or desire to prevent fake email addresses being used for ulterior purposes.

    It was tragic that Copyrights held by individual business people (sales res) were not even discussed in this case rendering Journalists, Authors, Musicians or even Appraisers now open to theft of their copyrighted works. The self serving interests of TREB and the large real estate brand franchisers to trample the rights of their members and brand users for their own gains ( taking copyrights to protect staff jobs ) was not once broached. Certainly it made sense to call Michael Giest on this topic but no that did not happen.

    The fact the so called “experts” who in fact were simply the poorest selling brokerages around the province looking for the magic spell that would allow them to become profitable without obtaining the skill and knowledge only the most successful in the business earn through years of dedication to the profession was absurd. Not once did TREB challenge even the skewed definition of a VOW presented by the failed brokerages looking to profit from the public release of personal information of other brokerages clients even brought up.

    To be blunt the incompetence of leadership both Board and Staff of TREB and CREA was on full display in their total failure to protect the interests of their members. I would argue they should be sued for their incompetence when claiming to be knowledgeable on the topic which clearly they were not.

    We demanded and have already been rewarded the addition of a new check off on the MLS form signed by sellers to prevents public dissemination of private information without any identification check of those accessing that information taking place. TREB out of fear of reprisal from Seller Solicitors has enacted to allow Sellers to maintain their historic rights to privacy.

    Members of TREB (and all members of organized real estate) must be asking why has TREB or CREA or my own board not revised their Copyright licensing agreement with me since this decision was rendered. A Quality and RECO compliant Listing Details page requires at a minimum 6 hours of detailed work to complete. The best listings take over a days works and many service providers being engaged to complete it. It is a copyrighted work like any musical score or Coca Cola Ad.

    I understand the incompetence of most OREA members that they believe you can violate copyrights of others in order to throw a listing together in an hour. They believe you can look at a couple of solds and throw a price at a seller that is high enough to get them to list. The level of incompetence was only further the result of a previous agreement between CREA and the CB that allowed mere postings to be marketed on realtor.ca without any Warning or Disclosure posted to protect innocent home buyers.

    Why did the CB not call a single Exclusive Buyer Brokerage to the stand? In Ontario their Standard of Practice requires Purchase Prices not be released to the public. The sheer magnitude of the case law, legal opinions and historical sales data reviewed to support this Buyer Protection measure makes what appeared in this court case look like grade school.

    Home is the single largest asset the vast majority of Canadians will ever own. It is sad that in 2018 OREA, CREA, real estate boards and the Big RE Brand Franchisors ( remember RE/MAX and Royal Lepage are NOT real estate companies but simply franchisors who pretend to be something else …..they can’t be charged by RECO btw) . The level of todays incompetence and self serving interests of TREB in this case is proven by their failure to bring to the attention of the CB the plethora of problems immediately launched with this ruling.

    MLS systems have existed for over 50 years as Co-Operative Listing Services where in a private secure and protected environment personal information of Home Owners can be shared with one Co-Operative Brokerage to another. It was never designed or intended to be a Competitive Service where sharing of information not only could damage your business but also place the consumer at risk.

    The Bureau’s failure to understand trends and forecasts cannot LEGALLY be issued by a REALTOR under REBBA defies logic. The recent BBQ warning issued to all by RECO still resides on their website. Why did TREB not present that document in this case? Why was RECO not called for expert testimony??

    It is my conclusion that TREB and CREA and the Franchisors actually used the CB for their own gains at the expense of membership. The CB who believed the lowest preforming and newest ( I mean some of those “experts” had not even sold 100 homes in their entire careers) brokerages where competent in discussing the topic and the fact these “experts” where not exposed for what they were by TREB is the only proof anyone needed.

    Where were all those 1000 sale agents called as witnesses? Where were the broker owners with 30 years of business expertise in protecting the public called as witnesses? The CB was conned by TREB and CREA used as a sword to take the lawful rights of their members away from them and remove privacy rights every single consumer who signed a listing agreement in the last 25 years knowingly signed in under.

    It took CREA what a week to announce it too wanted your Solds to post for all the world to see in order to protect realtor.ca from Zillow….who by the way will get that sold data now too via C21 or some other brokerage who lacks the experience to handle a real estate transaction properly.

    I will conclude with this…

    A consumer who enters into a listing contract that places any risk on the consumer is legally required by the courts to have that risk explained. Should the terms of use of the information gathered under those listing contracts be changed, the consumer has a legal right to be informed and provide consent before those new terms are imposed upon them.

    Not a single consumer in Ontario or Canada for that matter, signed a listing agreement under the informed consent that the world would have open unhindered access to the information contained in it. Further no ASP signed in Canadian History included the Seller or Buyer agreeing to the open publication of ANY terms outlined in that agreement! (Of course the ASP was never presented as evidence in this case…..why?????)

    I believe it is illegal to retroactively void terns of use agreed to by Consumers with REALTORs. I will leave it to Class Action lawyers to make that determination of fact. I believe a smart Class Action lawyer can now ( since public access to client information not agreed to (explained upon agreement) in terms of use) bankrupt TREB or CREA or any FRANCHISE Brand in Canada. RECO could be called as the expert witness in this case and all historical documentation available be used to win quickly.

    The ignorance by all parties to this case is beyond the $250 Billion dollars of real estate traded across Canada by REALTOR trademark licensees each year. The total home buying dollars traded this year will exceed 1/3 of the entire GDP of Canada. This is not funny, not fun and should demand the respect and seriousness such an overwhelmingly dominate component of the economy and household consumption deserves.

    (this was not edited or grammar checked….sorry no more time to waste)

    • Dear Mr. DeHoey,

      Where was the most-noted Canadian:Ontario real estate’s most “expert witness,” one Mr. Barry Lebow in all this? According to many REM articles, it is alleged that he has stood as an expert witness in the field for some 500 cases, with some fifty years’ service in the industry. Granted his so-called expertise may have been outside the MLS rules area of expertise, but I just use his name as an example. There must be experts in the “privacy-realm” out there someplace; the point being, apparently none were included. It’s difficult to imagine what you have brought to the fore. The whole thing seems a little lopsided.

      I was one in the very very early days of my career who fought vigorously to not be mandatory “required” to post private information on MLS listings. In particular, finite details of a specific seller’s mortgage information. Yes. Mandatory, or listings would be rejected (by the Board and returned marked rejected, via the interoffice Board mailbag. Each listing was (manually of course) checked by a Board staff member.

      I had a brief chat with (D) Merv Burgard at a later date, about the wording of some OREA clauses. He replied: “if you don’t like them, create your own.” So I did. About 85 of them. I vetted my alternates with my lawyer, as again just because I disagreed, I wanted to be sure no new jeopardy was created. And I carried with me liability and disclosure forms by the boatload, later of course as Word docs. I wanted everyone including my brokerage protected as best as possible at all times. No, I’m not a lawyer but they are well paid support advocates.

      Yes, upon occasion the mortgage attached to a property would be an assumable mortgage, assumable sometimes requiring the buyer to qualify, sometimes no restrictions as to such, making the property perhaps have a saleability factor netting the seller a higher offer. Although either way mostly there were discharge fees.

      But that aside, the privacy topic could have been dealt with by simply noting that co-op agents (sub-agents in those days) should contact the listing rep for details, protecting public privacy rights. I was pretty much told to sit down and be quiet. Didn’t I realize I was new to the business, and who did I think I was trying to change the rules as to how things had always been done.

      I could scarcely believe my eyes when researching information, reading old MLS books for information relative to what fast had become my farm areas. The books were inundated with very private information, that in my humble opinion was simply no one’s business. Sometimes the listing rep would even state that the mortgage was in arrears. And that the house was vacant. Or seller worked shifts. Or: ignore the beware dog sign when using lockbox; there isn’t a dog. Truthfully I was shocked.

      The rules were the rules. Rules were made “by the Board.” And not to be challenged by a know-nothing newcomer. What did I know? And what made me think “my opinion” counted…. That sort of “violent” change would require Board rules to be changed, and that simply would never happen. It would change the way the whole industry operated.

      Not many months later, oddly enough the “rules” were changed, all new MLS forms were devised, replacing ones in use for decades. We were permitted to say such: “Contact listing agent for details; or write “Treat as clear; or, Vendor will discharge.” (That’s too funny. Of course he would discharge one way or another.)

      Likewise the Agreement of Purchase and Sale forms, wherein I brought forward at a general meeting that the top of the first page read as though the agencies involved were in fact parties to the contract. Suddenly such information was below owner signatures, last on the contract.

      Once again I was told to be quiet, except for the Chair of the meeting who said: why don’t you take your ideas to TREB. I thanked him and suggested since he was a powerful representative broker owner and not a mere new to the field lowly sales rep, perhaps if he thought my comments were worthwhile, maybe they would be taken seriously if he brought forward the topics. (Of course in Ontario, OREA would be involved.)

      Oddly enough, not many months later once again all new forms were in mandatory use.

      He and I didn’t see eye to eye on some things, but he respected my ideas enough to move them forward. And I respected his intervention, although I never was party to any details. And I worked for another major corporation initially.

      I didn’t feel confident enough as a new person to bring forward what I had discovered, to the master control, TREB. But his voice certainly had merit in the industry and he moved the suggestions forward. I never heard another word about it subsequently.

      That was my beginning of the introduction to the “privacy issue.”
      And that was more than thirty-five years ago. The current debacle seems to undermine the public’s right to privacy, at least until closing date, at which time details are/were available through LRO.

      I’m all for having the tools needed to do our work in the most fastidious fashion, but as Mr. DeHoey notes, where were all the so-called experts that were never called upon to participate.

      Shades of the old gramma’s ham bone story and it had always been done that way.

      Carolyne L 🍁

  8. Some REM readers might like to read the letter by Norton Rose Fulbright Canada LLP:

    “Moreover, and we believe more importantly, this decision sets an important precedent for the bureau, as it recognizes that an entity exerting control over data in a way that may affect competitiveness in a market could be construed as abusing a dominant position, regardless of whether it competes in that market or not.

    As such, this decision’s ramifications are not limited to the Toronto area or the real estate market, as the reasoning could be extended to any Canadian trade association or business controlling important databases and operating on a model similar to the TREB.”

    http://www.mondaq.com/canada/x/734136/Antitrust+Competition/The+End+Supreme+Court+Dismisses+TREBs+Application+For+Leave+To+Appeal+In+Abuse+Of+Dominance+Case

  9. Well done Mr. Boswell in opening up what was a really and truly a extremely competitive business already! Great job! Now move on to the really non-competitive businesses in Canada namely oil producers, telecoms and airlines.

  10. The only concern occurs when the sold price is placed on the board that it does not go “public” until the transaction closes. If it falls apart in the final hour the knowledge of what the seller was willing to accept could be used against them in a subsequent offer, not allowing them to receive fair market value for that time period.
    Beyond that concern we must realize that once closed the information is public knowledge through the Registry Office – publishing it in one location is simply a time saver and we must show our value in other ways.

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